POLITICAL  THEORIES 

OF  THE 

MIDDLE  AGE. 


Sonoon:   C.  J.  CLAY  and  SONS, 
CAMBRIDGE  UNIVERSITY  PRESS  WAREHOUSE, 
AVE  MARIA  LANE, 

AND 

STEVENS   AND   SONS,  Ltd, 
119  AND  120,  Chancery  Lane. 


Glasgoiu:  50,  WELLINGTON  STREET. 
ILcipjitj:  F.  A.  BROCKHAUS. 
i9£hj  gorfe:   THE  MACiMILLAN  COMPANY. 
aSombag:  E.   SEYMOUR  HALE. 


POLITICAL  THEORIES 

OF  THE  ^ 


MIDDLE  AGE 

BY 

/ 

Dr   otto  GIERKE, 

PROFESSOR  OF  LAW  IN  THE  UNIVERSITY  OF  BERLIN. 


JAN  8  10^7 


TRANSLATED 
WITH  AN  INTRODUCTION 

BY 

FREDERIC  WILLIAM  MAITLAND,  LL.D.,  D.C.L. 

DOWNING  PROFESSOR  OF  THE  LAWS  OF  ENGLAND 
IN  THE  UNIVERSITY  OF  CAMBRIDGE. 


CAMBRIDGE: 
AT  THE  UNIVERSITY  PRESS. 
1900 

\AU  Rights  reserved. '\ 


PRINTED  BY  J.  AND  C.  F.  CLAY, 
AT  THE  UNIVERSITY  PRESS. 


CONTENTS. 


PAGE 

Translator's  Introduction  .......  vii 

Analytical  Summary   xlvii 

Subject  Matter  of  the  Notes   Ivi 

List  of  Authorities                                                       .  Ixiii 

Index  to  List  of  Authorities   Ixxviii 

Political  Theories  of  the  Middle  Age     ....  i 

Notes   loi 


ERRATA. 


pp.  44,  46,  66j  67.    For  Leopold  of  Babenberg  read  Leopold  of 

Bebenbiirg. 

p.  67.    The  new  section  should  be  numbered  VIII  not  VII. 
p.  150,  note  158.    Add  to  what  is  said  of  the  opinions  of  Baldus 
the  following : — 
'  But  in  Rubr.  C.  10,  i,  nr.  12,  he  holds  that  the  camera  ifnperii 
may  in  a  secondary  sense  be  said  to  belong  to  the  Roman  people ; 
quia  princeps  repraesentat  ilium  populum  et  ille  populus  imperium 
etiam,  mortuo  principe.' 


INTRODUCTION. 


Had  what  is  here  translated,  namely,  a  brief  account  of  the 
political  theories  of  the  Middle  Ages,  appeared  as  a  whole  book,  it 
would  hardly  have  stood  in  need  of  that  distorting  medium,  an 
English  translation.  Englishmen  who  were  approaching  the  study 
of  medieval  politics,  either  from  the  practical  or  from  the  theoretical 
side,  would  have  known  that  there  was  a  book  which  they  would 
do  well  to  master,  and  many  who  were  not  professed  students  or 
whose  interests  lay  altogether  in  modern  times  would  have  heard 
of  it  and  have  found  it  profitable.  The  elaborate  notes  would  have 
shewn  that  its  writer  had  read  widely  and  deeply;  they  would  also 
have  guided  explorers  into  a  region  where  sign-posts  are  too  few. 
As  to  the  text,  the  last  charge  which  could  be  made  against  it 
would  be  that  of  insufficient  courage  in  generalization,  unless 
indeed  it  were  that  of  aimless  medievalism.  The  outlines  are 
large,  the  strokes  are  firm,  and  medieval  appears  as  an  introduction 
to  modern  thought.  The  ideas  that  are  to  possess  and  divide 
mankind  from  the  sixteenth  until  the  nineteenth  century — 
Sovereignty,  the  Sovereign  Ruler,  the  Sovereign  People,  the 
Representation  of  the  People,  the  Social  Contract,  the  Natural 
Rights  of  Man,  the  Divine  Rights  of  Kings,  the  Positive  Law  that 
stands  below  the  State,  the  Natural  Law  that  stands  above  the 
State — these  are  the  ideas  whose  early  history  is  to  be  detected, 
and  they  are  set  before  us  as  thoughts  which,  under  the  influence  of 
Classical  Antiquity,  necessarily  shaped  themselves  in  the  course  of 
medieval  debate.  And  if  the  thoughts  are  interesting,  so  too  are 
the  thinkers.  In  Dr  Gierke's  list  of  medieval  publicists,  beside  the 
divines  and  schoolmen,  stand  great  popes,  great  lawyers,  great 
reformers,  men  who  were  clothing  concrete  projects  in  abstract 


viii      Political  Theories  of  the  Middle  Age, 


vesture,  men  who  fashioned  the  facts  as  well  as  the  theories  of 
their  time. 

Moreover,  Englishmen  should  be  especially  grateful  to  a  guide 
who  is  perhaps  at  his  strongest  just  where  they  must  needs  be 
weak :  that  is,  among  the  books  of  the  legists  and  canonists.  An 
educated  Englishman  may  read  and  enjoy  what  Dante  or  Marsiglio 
has  written.  An  English  scholar  may  face  Aquinas  or  Ockham  or 
even  the  repellent  Wyclif  But  Baldus  and  Bartolus,  Innocentius 
and  Johannes  Andreae,  them  he  has  never  been  taught  to  tackle, 
and  they  are  not  to  be  tackled  by  the  untaught.  And  yet  they 
are  important  people,  for  political  philosophy  in  its  youth  is  apt  to 
look  like  a  sublimated  jurisprudence,  and,  even  when  it  has  grown 
in  vigour  and  stature,  is  often  compelled  or  content  to  work  with 
tools — a  social  contract  for  example — which  have  been  sharpened, 
if  not  forged,  in  the  legal  smithy.  In  that  smithy  Dr  Gierke  is  at 
home.  With  perfect  modesty  he  could  say  to  a  learned  German 
public  '  It  is  not  probable  that  for  some  time  to  come  anyone  will 
tread  exactly  the  same  road  that  I  have  trodden  in  long  years  of 
fatiguing  toil.' 

But  then  what  is  here  translated  is  only  a  small,  a  twentieth, 
part  of  a  large  and  as  yet  unfinished  book  bearing  a  title  which  can 
hardly  attract  many  readers  in  this  country  and  for  which  an 
English  equivalent  cannot  easily  be  found,  namely  Das  deutsche 
GenossenscJiaftsrecht.  Of  that  work  the  third  volume  contains  a 
section  entitled  Die  publicistiscJien  Lehren  des  Mittelalters,  and  that 
is  the  section  which  is  here  done  into  English.  Now  though  this 
section  can  be  detached  and  still  bear  a  high  value,  and  though  the 
author's  permission  for  its  detachment  has  been  graciously  given, 
still  it  would  be  untrue  to  say  that  this  amputating  process  does  no 
harm.  The  organism  which  is  a  whole  with  a  life  of  its  own,  but 
is  also  a  member  of  a  larger  and  higher  organism  whose  life  it 
shares,  this,  so  Dr  Gierke  will  teach  us,  is  an  idea  which  we  must 
keep  before  our  minds  when  we  are  studying  the  political  thought 
of  the  Middle  Ages,  and  it  is  an  idea  which  we  may  apply  to  his 
and  to  every  good  book.  The  section  has  a  life  of  its  own,  but  it 
also  shares  the  life  of  the  whole  treatise.  Nor  only  so  ;  it  is 
menibriivi  de  vienibro.  It  is  a  section  in  a  chapter  entitled  *  The 
Medieval  Doctrine  of  State  and  Corporation,'  which  stands  in  a 
volume  entitled  '  The  Antique  and  Medieval  Doctrine  of  State  and 


Translator  s  Introduction. 


ix 


Corporation  and  its  Reception  in  Germany' ;  and  this  again  is  part 
of  Das  deutscJie  GenossenscJiaftsrecJit.  Indeed  our  section  is  a 
member  of  a  highly  organized  system,  and  in  that  section  are 
sentences  and  paragraphs  which  will  not  yield  their  full  meaning 
except  to  those  who  know  something  of  the  residue  of  the  book 
and  something  also  of  the  controversial  atmosphere  in  which  a 
certain  Genossenschaftstheorie  has  been  unfolding  itself  This  being 
so,  the  intervention  of  a  translator  who  has  read  the  whole  book, 
who  has  read  many  parts  of  it  many  times,  who  deeply  admires  it, 
may  be  of  service.  In  a  short  introduction,  even  if  his  own  steps 
are  none  too  sure,  he  may  be  able  to  conduct  some  of  his  fellow- 
countrymen  towards  a  point  of  view  which  commands  a  wide 
prospect  of  history  and  human  affairs. 

Staats-  2ind  Korporationslehre — the  Doctrine  of  State  and 
Corporation.  Such  a  title  may  be  to  some  a  stumbling-block 
set  before  the  threshold.  A  theory  of  the  State,  so  it  might 
be  said,  may  be  very  interesting  to  the  philosophic  few  and 
fairly  interesting  to  the  intelligent  many,  but  a  doctrine  of  Cor- 
porations, which  probably  speaks  of  fictitious  personality  and 
similar  artifices,  can  only  concern  some  juristic  speculators,  of 
whom  there  are  none  or  next  to  none  in  this  country.  On  second 
thoughts,  however,  we  may  be  persuaded  to  see  here  no  rock  of 
ofifence  but  rather  a  stepping-stone  which  our  thoughts  should 
sometimes  traverse.  For,  when  all  is  said,  there  seems  to  be  a 
genus  of  which  State  and  Corporation  are  species.  They  seem  to 
be  permanently  organized  groups  of  men  ;  they  seem  to  be  group- 
units  ;  we  seem  to  attribute  acts  and  intents,  rights  and  wrongs  to 
these  groups,  to  these  units.  Let  it  be  allowed  that  the  State  is  a 
highly  peculiar  group-unit ;  still  it  may  be  asked  whether  we 
ourselves  are  not  the  slaves  of  a  jurist's  theory  and  a  little  behind 
the  age  of  Darwin  if  between  the  State  and  all  other  groups  we  fix 
an  immeasurable  gulf  and  ask  ourselves  no  questions  about  the 
origin  of  species.  Certain  it  is  that  our  medieval  history  will  go 
astray,  our  history  of  Italy  and  Germany  will  go  far  astray,  unless 
we  can  suffer  communities  to  acquire  and  lose  the  character  of 
States  somewhat  easily,  somewhat  insensibly,  or  rather  unless  we 
both  know  and  feel  that  we  must  not  thrust  our  modern  '  State- 
concept,'  as  a  German  would  call  it,  upon  the  reluctant  material. 

Englishmen  in  particular  should  sometimes  give  themselves 


X        Political  Theories  of  the  Middle  Age. 


this  warning,  and  not  only  for  the  sake  of  the  Middle  Ages. 
Fortunate  in  littleness  and  insularity,  England  could  soon  exhibit 
as  a  difference  in  kind  what  elsewhere  was  a  difference  in  degree, 
namely,  to  use  medieval  terms,  the  difference  between  a  com- 
munity or  corporation  {universitas)  which  does  and  one  which 
does  not  '  recognize  a  superior.'  There  was  no  likelihood  that 
the  England  which  the  Norman  duke  had  subdued  and  surveyed 
would  be  either  Staatenbimd  or  Bimdesstaat,  and  the  aspiration 
of  Londoners  to  have  '  no  king  but  the  mayor '  was  fleeting. 
This,  if  it  diminished  our  expenditure  of  blood  and  treasure — 
an  expenditure  that  impoverishes  — diminished  also  our  expendi- 
ture of  thought — an  expenditure  that  enriches — and  facilitated 
(might  this  not  be  said  ?)  a  certain  thoughtlessness  or  poverty 
of  ideas.  The  State  that  Englishmen  knew  was  a  singularly 
unicellular  State,  and  at  a  critical  time  they  were  not  too  well 
equipped  with  tried  and  traditional  thoughts  which  would  meet  the 
case  of  Ireland  or  of  some  communities,  commonwealths,  corpora- 
tions in  America  which  seemed  to  have  wills — and  hardly  fictitious 
wills — of  their  own,  and  which  became  States  and  United  States^ 
The  medieval  Empire  laboured  under  the  weight  of  an  incon- 
gruously simple  theory  so  soon  as  lawyers  were  teaching  that  the 
Kaiser  was  the  Princeps  of  Justinian's  law-books.  The  modern 
and  multicellular  British  State — often  and  perhaps  harmlessly  called 
an  Empire — may  prosper  without  a  theory,  but  does  not  suggest 
and,  were  we  serious  in  our  talk  of  sovereignty,  would  hardly 
tolerate,  a  theory  that  is  simple  enough  and  insular  enough,  and 
yet  withal  imperially  Roman  enough,  to  deny  an  essentially  state- 
like character  to  those  '  self-governing  colonies,'  communities, 
commonwealths,  which  are  knit  and  welded  into  a  larger  sovereign 
whole.  The  adventures  of  an  English  joint-stock  company  which 
happed  into  a  rulership  of  the  Indies,  the  adventures  of  another 
English  company  which  while  its  charter  was  still  very  new  had 
become  the  puritan  commonwealth  of  Massachusetts  Bay  should 

^  See  the  remarks  of  Sir  C.  Ilbert,  The  Government  of  India,  p.  55:  'Both  the 
theory  and  the  experience  were  lacking  which  are  requisite  for  adapting  English  insti- 
tutions to  new  and  foreign  circumstances.  For  want  of  such  experience  England  was 
destined  to  lose  her  colonies  in  the  Western  hemisphere.  For  want  of  it  mistakes  were 
committed  which  imperilled  the  empire  she  was  building  up  in  the  East.'  The  want 
of  a  theory  about  Ireland  which  would  have  mediated  between  absolute  dependence  and 
absolute  independence  was  the  origin  of  many  evils. 


Translator  s  Introdttction. 


xi 


be  enough  to  shew  that  our  popular  English  Staatslehre  if,  instead 
of  analyzing  the  contents  of  a  speculative  jurist's  mind,  it  seriously 
grasped  the  facts  of  English  history,  would  shew  some  inclination 
to  become  a  K orporationslehre  also. 

Even  as  it  is,  such  a  tendency  is  plainly  to  be  seen  in  many 
zones.  Standing  on  the  solid  ground  of  positive  law  and  legal 
orthodoxy  we  confess  the  king  of  this  country  to  be  a  '  corporation 
sole,'  and,  if  we  have  any  curiosity,  ought  to  wonder  why  in  the 
sixteenth  century  the  old  idea  that  the  king  is  the  head  of  a  '  cor- 
poration aggregate  of  many^'  gave  way  before  a  thought  which 
classed  him  along  with  the  parish  parson  of  decadent  ecclesiastical 
law  under  one  uncomfortable  rubric.  Deeply  convinced  though 
our  lawyers  may  be  that  individual  men  are  the  only  '  real '  and 
'  natural '  persons,  they  are  compelled  to  find  some  phrase  which 
places  State  and  Man  upon  one  level.  '  The  greatest  of  artificial 
persons,  politically  speaking,  is  the  State ' :  so  we  may  read  in  an 
excellent  First  Book  of  Jurisprudence  I  Ascending  from  the  legal 
plain,  we  are  in  a  middle  region  where  a  sociology  emulous  of  the 
physical  sciences  discourses  of  organs  and  organisms  and  social 
tissue,  and  cannot  sever  by  sharp  lines  the  natural  history  of  the 
state-group  from  the  natural  history  of  other  groups.  Finally,  we 
are  among  the  summits  of  philosophy  and  observe  how  a  doctrine, 
which  makes  some  way  in  England,  ascribes  to  the  State,  or,  more 
vaguely,  the  Community,  not  only  a  real  will,  but  even  'the'  real 
will,  and  it  must  occur  to  us  to  ask  whether  what  is  thus  affirmed 
in  the  case  of  the  State  can  be  denied  in  the  case  of  other  organized 
groups  :  for  example,  that  considerable  group  the  Roman  Catholic 
Church.  It  seems  possible  to  one  who  can  only  guess,  that  even 
now-a-days  a  Jesuit  may  think  that  the  will  of  the  Company  to 
which  he  belongs  is  no  less  real  than  the  will  of  any  State,  and,  if 
the  reality  of  this  will  be  granted  by  the  philosopher,  can  he  pause 
until  even  the  so-called  one-man-company  has  a  real  will  really 
distinct  from  the  several  wills  of  the  one  man  and  his  six  humble 
associates  t  If  we  pursue  that  thought,  not  only  will  our  philo- 
sophic Staatslehre  be  merging  itself  in  a  wider  doctrine,  but  we 
shall  already  be  deep  in  the  GenossenschaftstJieorie.  In  any  case, 
however,  the  law's  old  habit  of  co-ordinating  men  and  '  bodies 

^  A  late  instance  of  this  old  concept  occurs  in  Plowden's  Commentaries,  234. 
^  Pollock,  First  Book  of  Jurisprudence,  113. 


xii       Political  Theories  of  the  Middle  Age, 


politic*  as  two  kinds  of  Persons  seems  to  deserve  the  close  attention 
of  the  modern  philosopher,  for,  though  it  be  an  old  habit,  it  has 
become  vastly  more  important  in  these  last  years  than  it  ever  was 
before.  In  the  second  half  of  the  nineteenth  century  corporate 
groups  of  the  most  various  sorts  have  been  multiplying  all  the 
world  over  at  a  rate  that  far  outstrips  the  increase  of  '  natural 
persons,'  and  a  large  share  of  all  our  newest  law  is  law  concerning 
corporations^  Something  not  unworthy  of  philosophic  discussion 
would  seem  to  lie  in  this  quarter :  either  some  deep-set  truth  which 
is  always  bearing  fresh  fruit,  or  else  a  surprisingly  stable  product  of 
mankind's  propensity  to  feign. — Howbeit,  this  rare  atmosphere  we 
do  not  easily  breathe  and  therefore  will  for  a  while  follow  a  lower 
road. 

I. 

A  large  part  in  the  volume  that  lies  before  the  translator  is 
played  by  '  the  Reception.'  When  we  speak  of  the  Renaissance 
and  the  Reformation  we  need  not  be  at  pains  to  name  what  was 
reformed  or  what  was  born  anew,  and  even  so  a  German  historian 
will  speak  of  the  Reception  when  he  means  the  Reception  of 
Roman  law.  Very  often  Renaissance,  Reformation  and  Reception 
will  be  set  before  us  as  three  intimately  connected  and  almost 
equally  important  movements  which  sever  modern  from  medieval 
history.  Modern  Germany  has  attained  such  a  pre-eminence 
in  the  study  of  Roman  law,  that  we  in  England  may  be  pardoned 
for  forgetting  that  of  Roman  law  medieval  Germany  was  innocent 
and  ignorant,  decidedly  more  innocent  and  more  ignorant  than 
was  the  England  of  the  thirteenth  century.  It  is  true  that  in 
Germany  the  theoretical  continuity  of  the  Empire  was  providing 
a  base  for  the  argument  that  the  law  of  Justinian's  books  was  or 
ought  to  be  the  law  of  the  land  ;  it  is  also  true  that  the  Corpus 
luris  was  furnishing  weapons  useful  to  Emperors  who  were  at  strife 
with  Popes  ;  but  those  weapons  were  fashioned  and  wielded  chiefly 
by  Italian  hands,  and  the  practical  law  of  Germany  w^as  as 
German  as  it  well  could  be.    Also — and  here  lay  the  possibility  of 

1  In  1857  an  American  judge  went  the  length  of  saying  '  It  is  probably  true  that  more 
corporations  were  created  by  the  legislature  of  Illinois  at  its  last  session  than  existed 
in  the  whole  civilized  world  at  the  commencement  of  the  present  century.'  Dillon, 
Municipal  Corporations,  §  37  a. 


Translator  s  Introduction, 


xiii 


a  catastrophe — it  was  not  learned  law,  it  was  not  taught  law,  it  was 
far  from  being  Jtiristenrecht.  Englishmen  are  wont  to  fancy  that 
the  law  of  Germany  must  needs  savour  of  the  school,  the  lecture 
room,  the  professor  ;  but  in  truth  it  was  just  because  German  law 
savoured  of  nothing  of  the  kind,  but  rather  of  the  open  air,  oral 
tradition  and  thoroughly  unacademic  doomsmen  that  the  law  of 
Germany  ceased  to  be  German  and  that  German  law  has  had  to  be 
disinterred  by  modern  professors.  Of  the  geographical  and  histori- 
cal causes  of  the  difference  we  need  not  speak,  but  in  England  we 
see  a  very  early  concentration  of  justice  and  then  the  rapid  growth 
of  a  legal  profession.  The  Year  Books  follow  and  the  Inns  of  Court 
and  lectures  on  English  law  and  scholastic  exercises  and  that  'call  to 
the  bar'  of  the  Inn  which  is  in  fact  an  academically  earned  degree. 
Also  long  before  Germany  had  universities,  Roman  law  was  being 
taught  at  Oxford  and  Cambridge,  so  that  it  would  not  come 
hither  with  the  glamour  of  the  Renaissance.  A  certain  modest 
place  had  been  assigned  to  it  in  the  English  scheme  of  life  ;  some 
knowledge  of  it  was  necessary  to  the  students  of  the  lucrative  law 
of  the  Church,  and  a  few  civilians  were  required  for  what  we 
should  call  the  diplomatic  service  of  the  realm.  But  already  in 
the  fourteenth  century  Wyclif,  the  schoolman,  had  urged  that  if 
law  was  to  be  taught  in  the  English  universities  it  ought  to  be 
English  law.  In  words  which  seem  prophetic  of  modern  '  Ger- 
manism' he  protested  that  English  was  as  just,  as  reasonable,  as 
subtle,  as  was  Roman  jurisprudence \ 

Thus  when  the  perilous  time  came,  when  the  New  Learning 
was  in  the  air  and  the  Modern  State  was  emerging  in  the  shape  of 
the  Tudor  Monarchy,  English  law  was  and  had  long  been  lawyers' 
law,  learned  law,  taught  \-a.\Y ,  Jiiristenrecht.  Disgracefully  barbarous, 
so  thought  one  enlightened  apostle  of  the  New  Learning.  Reginald 
Pole — and  his  advice  was  brought  to  his  royal  cousin — was  for 
sweeping  it  away.  In  so  many  words  he  desired  that  England 
should  *  receive'  the  civil  law  of  the  Romans  :  a  law  so  civil  that 
Nature's  self  might  have  dictated  it  and  a  law  that  was  being  re- 
ceived in  all  well  governed  lands'''.    We  must  not  endeavour  to  tell 

1  Wyclif,  De  Officio  Regis  (ed.  Pollard  and  Sayle,  1887),  p.  193:  '  Sed  non  credo 
quod  plus  viget  in  Romana  civilitate  subtilitas  racionis  sive  iusticia  quam  in  civilitate 
Anglicana.' 

2  Starkey's  England  (Early  Eng.  Text  Soc.  1878),  192 — 5. 


xiv       Political  Theories  of  the  Middle  Age, 


the  story  of  the  danger  that  beset  English  law  when  the  future 
Cardinal  Archbishop  was  speaking  thus :  a  glance  towards  Scot- 
land would  shew  us  that  the  danger  was  serious  enough  and  would 
have  been  far  more  serious  but  for  the  continuous  existence  of  the 
Inns  of  Court,  and  that  indoctissiimim  gemis  doctissimoriim  Jiomi- 
mini  which  was  bred  therein.  Then  late  in  the  sixteenth  century- 
began  the  wonderful  resuscitation  of  medieval  learning  which 
attains  its  completion  in  the  books  and  acts  of  Edward  Coke. 
The  political  side  of  this  movement  is  the  best  known.  Anti- 
quarian research  appears  for  a  while  as  the  guardian  and  renovator 
of  national  liberties,  and  the  men  who  lead  the  House  of  Commons 
are  becoming  always  more  deeply  versed  in  long-forgotten  records. 
However,  be  it  noted  that  even  in  England  a  certain  amount  of 
foreign  theory  was  received,  and  by  far  the  most  remarkable 
instance  is  the  reception  of  that  Italian  Theory  of  the  Corporation 
of  which  Dr  Gierke  is  the  historian,  and  which  centres  round  the 
phrase  persona  ficta.  It  slowly  stole  from  the  ecclesiastical  courts, 
which  had  much  to  say  about  the  affairs  of  religious  corporations, 
into  our  temporal  courts,  which,  though  they  had  long  been 
dealing  with  English  group-units,  had  no  home-made  theory  to 
oppose  to  the  subtle  and  polished  invader.  This  instance  may 
help  us  to  understand  what  happened  in  Germany,  where  the 
native  law  had  not  reached  the  doctrinal  stage  of  growth,  but  was 
still'  rather  '  folk  law'  than  lawyers'  law  and  was  dissipating  itself 
in  countless  local  customs. 

Italian  doctrine  swept  like  a  deluge  over  Germany.  The 
learned  doctors  from  the  new  universities  whom  the  Princes  called 
to  their  councils,  could  explain  everything  in  a  Roman  or  would-be 
Roman  sense.  Those  Princes  were  consolidating  their  powers 
into  a  (by  Englishmen  untranslatable)  LandeshoJieit  \  something 
that  was  less  than  modern  sovereignty,  for  it  still  would  have  the 
Empire  above  it,  but  more  than  feudal  seignory  since  classical 
thoughts  about  '  the  State'  were  coming  to  its  aid.  It  is 
noticeable  that,  except  in  his  hereditary  dominions,  the  Emperor 
profited  little  by  that  dogma  of  continuity  which  served  as  an 
apology  for  the  Reception.  The  disintegrating  process  was  so  far 
advanced  that  not  the  Kaiser  but  the  Fiirst  appeared  as  'the 
Prince'  of  political  theory  and  the  Princeps  of  the  Corpus  luris. 
The  doctors  could  teach  such  a  prince  much  that  was  to  his 


Translator  s  Introductio7t. 


XV 


advantage.  Beginning  late  in  the  fifteenth  century  the  movement 
accomplished  itself  in  the  sixteenth.  It  is  catastrophic  when 
compared  with  the  slow  and  silent  process  whereby  the  customary 
law  of  northern  France  was  partially  romanized.  No  legislator 
had  said  that  Roman  law  had  been  or  was  to  be  received  in 
Germany  ;  the  work  was  done  not  by  lawgivers  but  by  lawyers, 
and  from  age  to  age  there  remained  some  room  for  controversy  as 
to  the  exact  position  that  the  Corpus  luris  occupied  among  the 
various  sources  of  law  actual  and  potential.  Still  the  broad  fact 
remains  that  Germany  had  bowed  her  neck  to  the  Roman  yoke. 

In  theory  what  was  received  was  the  law  of  Justinian's  books. 
In  practice  what  was  received  was  the  system  which  the  Italian 
commentators  had  long  been  elaborating.  Dr  Gierke  frequently 
insists  that  this  is  an  important  difference.  In  Italy  the  race  of 
glossators  who  were  sincerely  endeavouring  to  discover  the 
meaning  of  classical  texts  had  given  way  to  a  race  of  commentators 
whose  work  was  more  or  less  controlled  by  a  desire  for  practically 
acceptable  results,  and  who  therefore  were  disposed  to  accommo- 
date Roman  law  to  medieval  life.  Our  author  says  that  especially 
in  their  doctrine  of  corporations  or  communities  there  is  much 
that  is  not  Roman,  and  much  that  may  be  called  Germanic.  This 
facilitated  the  Reception  :  Roman  law  had  gone  half-way  to  meet 
the  facts  that  it  was  to  govern.  Then  again,  at  a  later  time  the 
influence  of  what  we  may  call  the  '  natural'  school  of  jurists 
smoothed  away  some  of  the  contrasts  between  Roman  law  and 
German  habit.  If  in  the  eyes  of  an  English  lawyer  systems  of 
Natural  Law  are  apt  to  look  suspiciously  Roman,  the  modern 
Romanist  will  complain  that  when  and  where  such  systems  were 
being  constructed  concrete  Rome  was  evaporating  in  abstract 
Reason,  and  some  modern  Germanists  will  teach  us  that  '  Nature 
Right'  often  served  as  the  protective  disguise  of  repressible  but 
ineradicable  Germanic  ideas. 

With  the  decadence  of  Nature  Right  and  the  advent  of  '  the 
historical  school '  a  new  chapter  began.  Savigny's  teaching  had 
two  sides.  We  are  accustomed  to  think  of  him,  and  rightly,  as  the 
herald  of  evolution,  the  man  who  substitutes  development  for 
manufacture,  organism  for  mechanism,  natural  laws  for  Natural 
Law,  the  man  who  is  nervously  afraid  lest  a  code  should  impede 
the  beautiful  processes  of  gradual  growth.    But  then  he  was  also 


Political  Theories  of  the  Middle  Age. 


the  great  Romanist,  the  great  dogmatist,  the  expounder  of  classical 
texts  according  to  their  true — which  must  be  their  original — intent 
and  meaning.  There  was  no  good,  he  seemed  to  say,  in  playing  at 
being  Roman.  If  the  Common  Law  of  Germany  was  Roman  law, 
it  ought  to  be  the  law  of  the  Digest,  not  the  law  of  glossators  or 
commentators  or  '  natural '  speculators.  This  teaching,  so  we  are 
told,  bore  fruit  in  the  practical  work  of  German  courts.  They 
began  to  take  the  Corpus  luris  very  seriously  and  to  withdraw 
concessions  that  had  been  made — some  will  say  to  national  life 
and  modern  fact,  others  will  say  to  slovenly  thought  and  slipshod 
practice. 

But  that  famous  historical  school  was  not  only  a  school  of 
historically  minded  Romanists.  It  was  also  the  cradle  of  Ger- 
manism. Eichhorn  and  Grimm  stood  by  Savigny's  side.  Every 
scrap  and  fragment  of  old  German  law  was  to  be  lovingly  and 
scientifically  recovered  and  edited.  Whatever  was  German  was  to 
be  traced  through  all  its  fortunes  to  its  fount.  The  motive  force  in 
this  prolonged  effort — one  of  the  great  efforts  of  the  nineteenth 
century — was  not  antiquarian  pedantry,  nor  was  it  a  purely  dis- 
interested curiosity.  If  there  was  science  there  was  also  love.  At 
this  point  we  ought  to  remember,  and  yet  have  some  difficulty  in 
remembering,  what  Germany,  burdened  with  the  curse  of  the 
translated  Imperium,  had  become  in  the  six  centuries  of  her 
agony.  The  last  shadow  of  political  unity  had  vanished  and  had 
left  behind  a  '  geographical  expression,'  a  mere  collective  name  for 
some  allied  states.  Many  of  them  were  rather  estates  than  states ; 
most  of  them  were  too  small  to  live  vigorous  lives  ;  all  of  them 
were  too  small  to  be  the  Fatherland.  Much  else  besides  blood, 
iron  and  song  went  to  the  remaking  of  Germany.  The  idea  of  a 
Common  Law  would  not  die.  A  common  legislature  there  might 
not  be,  but  a  Common  Law  there  was,  and  a  hope  that  the  law  of 
Germany  might  someday  be  natively  German  was  awakened. 
Then  in  historical  retrospect  the  Reception  began  to  look  like 
disgrace  and  disaster,  bound  up  as  cause  and  effect  with  the  forces 
that  tore  a  nation  into  shreds.  The  people  that  defied  the  tyranny 
of  living  popes  had  fallen  under  the  tyranny  of  dead  emperors, 
unworthily  reincarnate  in  petty  princelings.  The  land  that  saw 
Luther  burn  one  'Welsh'  Corpus  luris  had  meekly  accepted 
another.    It  seemed  shameful  that  Germans,  not  unconscious  of 


Translator  s  Introdiictioii. 


xvii 


their  mastery  of  jurisprudence,  should  see,  not  only  in  England, 
but  in  France  and  even  the  France  of  Napoleon's  Code  the 
survival  of  principles  that  might  certainly  be  called  Germanic,  but 
could  not  be  called  German  without  a  sigh.  Was  not  '  a  daughter 
of  the  Salica,'  or  a  grand-daughter,  reigning  over  the  breadth  of 
North  America?  And  then,  as  might  be  expected,  all  manner  of 
causes  and  parties  sought  to  suck  advantage  out  of  a  patriotic 
aspiration.  The  socialist  could  denounce  the  stern  and  bitter 
individualism,  the  consecrated  selfishness,  of  the  alien  slave-owners' 
law,  and  the  Catholic  zealot  could  contrast  the  Christiano-German 
law  of  Germany's  great  days  with  the  Pagano-Roman  law  in  which 
disruptive  Protestantism  had  found  an  unholy  ally. 

In  all  soberness,  however,  it  was  asserted  that  old  German  law, 
blighted  and  stunted  though  it  had  been,  might  yet  be  nursed  and 
tended  into  bearing  the  fruit  of  sound  doctrine  and  reformed 
practice.  The  great  men  were  neither  dreamers  nor  purists. 
Jacob  Grimm  once  said  that  to  root  out  Roman  ideas  from 
German  law  would  be  as  impossible  as  to  banish  Romance  words 
from  English  speech.  The  technical  merits  of  Roman  law  were 
admitted,  admired  and  emulated.  Besides  Histories  of  German 
Law,  Systems  were  produced  and  '  Institutes.'  The  Germanist 
claimed  for  his  science  a  parity  of  doctrinal  rank  with  the  science 
of  the  Romanist.  He  too  had  his  theory  of  possession  ;  he  too 
had  his  theory  of  corporations;  and  sometimes  he  could  boast 
that,  willingly  or  unwillingly,  the  courts  were  adopting  his  con- 
clusions, though  they  might  attain  the  Germanic  result  by  the 
troublesome  process  of  playing  fast  and  loose  with  Ulpian  and  his 
fellows. 

Happier  days  came.  Germany  was  to  have  a  Civil  Code,  or 
rather,  for  the  title  at  least  would  be  German,  a  Biirgerliches 
Gesetzbuch.  Many  years  of  keen  debate  now  lie  behind  the  most 
carefully  considered  statement  of  a  nation's  law  that  the  world  has 
ever  seen.  Enthusiastic  Germanists  are  not  content,  but  they  have 
won  something  and  may  win  more  as  the  work  of  interpretation  pro- 
ceeds. What,  however,  concerns  us  here  is  that  the  appearance  of 
'  Germanistic '  doctrines  led  to  controversies  of  a  new  and  radical 
kind.  It  became  always  plainer  that  what  was  in  the  field  was  not 
merely  a  second  set  of  rules  but  a  second  and  a  disparate  set  of  ideas. 
Between  Romanist  and  Germanist,  and  again  within  each  school, 

M.  b 


xviii      Political  Theories  of  the  Middle  Age, 


the  debate  took  a  turn  towards  what  we  might  call  an  ideal 
morphology.  The  forms  of  legal  thought,  the  '  concepts '  with 
which  the  lawyer  '  operates/  were  to  be  described,  delimited,  com- 
pared. In  this  work  there  was  sometimes  shewn  a  delicacy  of 
touch  and  a  subtlety  of  historical  perception,  of  which  in  this 
country  we,  having  no  pressing  need  for  comparisons,  can  know 
little,  especially  if  our  notion  of  an  analytical  jurisprudence  is 
gathered  from  Austin's  very  '  natural '  exploits.  Of  special  interest 
to  Englishmen  should  be  the  manner  in  which  out  of  the  rude 
material  of  old  German  law  the  Germanists  will  sometimes  re- 
construct an  idea  which  in  England  needs  no  reconstruction  since 
it  is  in  all  our  heads,  but  which  bears  a  wholly  new  value  for  us 
when  we  have  seen  it  laboriously  composed  and  tested. 

II. 

At  an  early  moment  in  the  development  of  Germanism  a 
Theory  of  the  Corporation,  which  gave  itself  out  to  be  the 
orthodox  Roman  Theory  and  which  Savigny  had  lately  defined 
in  severe  outline,  was  assailed  by  Georg  Beseler  who  lived  to  be 
a  father  among  Germanists ^  You  will  never,  he  said  in  effect, 
force  our  German  fellowships,  our  German  Genossenschaften^  into 
the  Roman  scheme :  we  Germans  have  had  and  still  have  other 
thoughts  than  yours.  Since  then  the  Roman  Corporation  {tmi- 
versitas)  has  been  in  the  crucible.  Romanists  of  high  repute  have 
forsaken  the  Savignian  path  ;  Ihering  went  one  way,  Brinz  another^ 
and  now,  though  it  might  be  untrue  to  say  that  there  are  as  many 
doctrines  as  there  are  doctors,  there  seems  to  be  no  creed  that  is 
entitled  to  give  itself  the  airs  of  orthodoxy.  It  is  important  to 
remember  that  the  materials  which  stand  at  the  Romanist's  dis- 
posal are  meagre.  The  number  of  texts  in  the  Digest  which,  even 
by  a  stretch  of  language,  could  be  said  to  express  a  theory  of 
Corporations  is  extremely  small,  and  as  to  implied  theories  it  is 
easy  for  different  expositors  to  hold  different  opinions,  especially  if 
they  feel  more  or  less  concerned  to  deduce  a  result  that  will  be 
tolerable  in  modern  Germany.  The  admission  must  be  made  that 
there  is  no  text  which  directly  calls  the  iiniversitas  a  persona,  and 
still  less  any  that  calls  it  persona  ficta'^. 

1  Beseler,  Volksrecht  unci  Juristenrecht,  Leipzig,  1843,  pp.  158 — 194. 

-  It  does  not  seem  to  be  proved  that  the  Roman  jurists  went  beyond  the  *  personae 


Translator  s  Introdttction. 


xix 


According  to  Dr  Gierke,  the  first  man  who  used  this  famous 
phrase  was  Sinibald  Fieschi,  who  in  1243  became  Pope  Innocent  IV.^ 
More  than  one  generation  of  investigators  had  passed  away,  indeed 
the  whole  school  of  glossators  was  passing  away,  before  the  Roman 
texts  would  yield  a  theory  to  men  who  lived  in  a  Germanic  en- 
vironment, and,  when  a  theory  was  found,  it  was  found  by  the 
canonists,  who  had  before  their  eyes  as  the  typical  corporation,  no 
medieval  city,  village  or  gild,  but  a  collegiate  or  cathedral  church. 
In  Dr  Gierke's  view  Innocent,  the  father  of  'the  Fiction  Theory,* 
appears  as  a  truly  great  lawyer.  He  really  understood  the  texts ; 
the  head  of  an  absolute  monarchy,  such  as  the  catholic  Church  was 
tending  to  become,  was  the  very  man  to  understand  them  ;  he 
found  the  phrase,  the  thought,  for  which  others  had  sought  in  vain» 
The  corporation  is  a  person  ;  but  it  is  a  person  by  fiction  and  only 
by  fiction.  Thenceforward  this  was  the  doctrine  professed  alike  by 
legists  and  canonists,  but,  so  our  author  contends,  it  never  com- 
pletely subdued  some  inconsistent  thoughts  of  Germanic  origin 
which  found  utterance  in  practical  conclusions.  In  particular,  to 
mention  one  rule  which  is  a  good  touchstone  for  theories,  Innocent, 
being  in  earnest  about  the  mere  fictitiousness  of  the  corporation's 
personality  and  having  good  warrant  in  the  Digest^  proclaimed 
that  the  corporation  could  commit  neither  sin  nor  delict.  As  pope 
he  might  settle  the  question  of  sin,  and  at  all  events  could  prohibit 
the  excommunication  of  an  ttniversitas^ ,  but  as  lawyer  he  could  not 
convince  his  fellow  lawyers  that  corporations  must  never  be  charged 
with  crime  or  tort. 

Then  Savigny  is  set  before  us  as  recalling  courts  and  lawyers 
from  unprincipled  aberrations  to  the  straight  but  narrow  Roman 
road.  Let  us  bring  to  mind  a  few  of  the  main  traits  of  his 
renowned  doctrine. 

vice  fungilur '  of  Dig.  46,  1,  22.  Any  modern  text-book  of  Pandektenrecht  will  introduce 
its  reader  to  the  controversy,  and  give  numerous  references.  Here  it  may  be  enough  to 
name  Ihering,  Brinz,  Windscheid,  Pernice,  Dernburg  and  Regelsberger  as  prominent 
expositors  of  various  versions  of  the  Roman  theory.  Among  recent  discussions  may 
be  mentioned,  Kniep,  Societas  Publicanorum,  1896  ;  Kuhlenbeck,  Von  den  Pandekten 
zum  biirgerlichen  Gesetzbuch  ((898),  i.  169  ff. 

^  Gierke,  Genossenschaftsrecht,  iii.  279. 

2  Dig.  4,  3,  15  §  1. 

^  Gierke,  Genossenschaftsrecht,  ill.  280. 

b2 


XX       Political  Theories  of  the  Middle  Age. 


Besides  men  or  '  natural  persons/  the  law  knows  as  *  subjects^ ' 
of  proprietary  rights  certain  fictitious,  artificial  or  juristic  persons, 
and  as  one  species  of  this  class  it  knows  the  corporation.  We 
must  carefully  sunder  this  ideal  person  from  those  natural  persons 
who  are  called  its  members.  It  is  capable  of  proprietary  rights  ; 
but  it  is  incapable  of  knowing,  intending,  willing,  acting.  The 
relation  between  it  and  the  corporators  may  best  be  compared  to 
that  between  piipilhis  and  tutor,  or  that  between  a  lunatic  and  the 
committee  of  his  estate.  By  the  action  of  its  guardians  it  can 
acquire  property,  and,  if  it  is  to  take  the  advantage  of  contracts,  it 
must  take  the  burden  also.  To  allow  it  possession  is  difficult,  for 
possession  is  matter  of  fact ;  still  after  hesitation  the  Roman 
lawyers  made  this  concession.  An  action  based  upon  unjust 
enrichment  may  lie  against  it ;  but  it  must  not  be  charged  with 
delict.  To  attempt  to  punish  it  is  both  absurd  and  unjust,  though 
the  State  may  dissolve  a  noxious  group  in  an  administrative  way. 
Being  but  a  fiction  of  the  law,  its  personality  must  have  its  com- 
mencement in  some  authoritative  act,  some  declaration  of  the 
State's  will.  Finally,  it  may  continue  to  exist  though  it  no  longer 
has  even  one  member. 

For  the  last  three  centuries  and  more  Englishmen  have  been 
repeating  some  of  the  canonical  phrases,  but  Dr  Gierke  would 
probably  say  that  we  have  never  taken  them  much  to  heart.  We 
are  likely  therefore  to  overlook  some  points  in  the  Savignian 
theory  which  seem  serious  to  those  who  have  not  raised  con- 
venient inconsequence  to  the  level  of  an  intellectual  virtue.  In 
particular,  having  made  'the  corporation  itself  a  mindless  being 
that  can  do  no  act,  we  must  not  think  of  the  organized  group  of 
corporators  as  an  '  agent '  appointed  by  a  somewhat  inert  '  prin- 
cipal.' Were  the  corporation  'itself  capable  of  appointing  an 
agent,  there  would  be  no  apparent  reason  why  'itself  should  not 
do  many  other  acts.  Savigny  is  far  more  skilful.  It  is  not  in 
agency  but  in  guardianship  of  the  Roman  kind  that  he  finds  the 

^  Germans  distinguish  between  the  Subject  and  the  Object  of  a  right.  If  Styles  owns 
a  horse,  Styles  is  the  Subject  and  the  horse  the  Object  of  the  right.  Then  if  we  ascribe 
the  ownership  of  the  horse  to  the  CrouTi,  we  make  the  Crown  a  Subject ;  and  then  we 
can  speak  of  the  Crown's  Subjectivity.  And  so  in  political  theory,  if  we  ascribe 
Sovereignty  to  the  Crown  or  the  Parliament  or  the  People,  we  make  the  Crown, 
Parliament  or  People  the  Subject  of  Sovereignty.  The  reader  of  the  following  pages 
may  be  asked  to  remember  this  not  inconvenient  usage. 


Translator  s  Introduction. 


xxi 


correct  analogy.  Those  who  wish  to  make  fun  of  the  theory  say 
that  it  fills  the  legal  world  with  hopeless  idiots  and  their  State- 
appointed  curators  ;  but,  if  we  mean  logic,  we  must  be  careful  to 
see  that  our  'corporation  itself — that  Diiig  an  sick  which  some- 
how or  another  lies  beyond  the  phenomenal  group  of  corporators^ 
— does  no  act,  speaks  no  word,  thinks  no  thought,  appoints  no 
agent.  Also  we  may  observe,  and  in  history  this  is  important,  that 
this  theory  might  play  into  the  hands  of  a  Prince  or  princeling 
inclined  to  paternal  despotism.  Really  and  truly  the  property  of  a 
corporation — for  example  a  city  or  university — belongs  to  no  real 
person  or  persons,  and  over  the  doings  of  guardians  and  curators 
the  State  should  exercise,  no  mere  jurisdiction,  but  administrative 
control.  Of '  natural  rights'  there  can  here  be  no  talk,  for  'artificial 
persons '  can  have  no  natural  rights.  Furthermore,  the  strict  con- 
finement of  the  persona  ficta  within  the  sphere  of  Private  Law  may 
escape  notice  in  a  country  where  (to  use  foreign  terms)  '  publicistic' 
matter  has  been  wont  to  assume  '  private-rightly '  form  in  a  fashion 
that  some  would  call  shamefully  medieval  but  others  enviably 
Germanic.  The  Savignian  corporation  is  no  '  subject '  for  '  liberties 
and  franchises '  or  '  rights  of  self-government'  Really  and  '  pub- 
licistically '  it  can  hardly  be  other  than  a  wheel  in  the  State's 
machinery,  though  for  the  purposes  of  Property  Law  a  personifi- 
cation of  this  wheel  is  found  to  be  convenient.  Lastly,  some 
popular  thoughts  about  '  body '  and  '  members '  must  needs  go 
overboard.  The  guardian  is  no  '  member '  of  his  ward ;  and  how 
even  by  way  of  fiction  could  a  figment  be  composed  of  real  men? 
We  had  better  leave  body  and  members  to  the  vulgar. 

Savigny  wrote  on  the  eve  of  a  great  upheaval.  A  movement 
in  which  England  played  a  prominent  and  honourable  part  was 
thrusting  the  joint-stock  company  to  the  very  forefront  of  those 
facts  whence  a  theory  of  corporations  must  draw  its  sustenance. 
Whatever  may  be  said  of  municipal  and  other  communes,  of 
universities  and  colleges  and  churches,  the  modern  joint-stock 
company  plainly  resents  any  endeavour  to  '  construe '  it  as  a  piece 
of  the  State's  mechanism,  though  we  may  profitably  remember  that 

^  Pollock,  Contract,  ed.  6,  p.  io8  :  '  If  it  is  allowable  to  illustrate  one  fiction  by 
another,  we  may  say  that  the  artificial  person  is  a  fictitious  substance  conceived  as 
supporting  legal  attributes.'  But  this  happy  phrase  is  not  by  itself  an  adequate 
expression  of  Sir  F.  Pollock's  view.    See  the  context. 


xxii      Political  Theories  of  the  Middle  Age. 


early  and  exemplary  specimens,  notably  the  Bank  of  England  and 
the  East  India  Company,  were  closely  related  to  the  State.  More- 
over, the  modern  joint-stock  company,  if  it  is  an  imiversitas,  is 
exceedingly  like  a  societas,  a  partnership,  a  Gesellschaft,  and  this 
resemblance  seemed  to  threaten  one  of  the  securest  results  of  legal 
science.  There  were  a  few  phrases  in  the  Digest  capable  of  per- 
plexing the  first  glossators,  but  in  clear  words  Innocent  IV.  had 
apprehended  the  distinction :  the  imiversitas  is  a  person ;  the 
societas  is  only  another  name,  a  collective  name,  for  the  socii^. 
Since  then  jurisprudence  had  kept  or  endeavoured  to  keep  the  two 
in  very  different  boxes,  in  spite  of  the  efforts  of  Natural  Law  to 
break  down  the  partition.  In  a  system  of  P andektenrecht  the 
imiversitas  appeared  on  an  early  page  under  the  rubric  *  Law  of 
Persons,'  while  the  societas  was  far  away,  probably  in  another 
volume,  for  a  Partnership  is  a  kind  of  Contract  and  Contract  is 
a  kind  of  Obligation.  Here,  however,  was  a  being  whose  very 
name  of  Aktiengesellschaft  strongly  suggested  partnership,  and  yet 
the  German  legislators  who  had  designed  its  mould  had  almost 
certainly  meant  that  it  should  exhibit  personality  or  legal  '  sub- 
jectivity/ though  they  had  not  said  this  in  so  many  words.  Was  it 
imiversitas,  or  societas,  or  neither,  or  both }  Could  a  mean  term  be 
found  between  unity  and  plurality?  What  was,  what  could  be, 
the  'juristic  nature'  of  a  shareholder's  'share,'  as  we  call  it  in 
England Was  it  any  conceivable  form  of  co-ownership,  any 
*  real '  right  in  the  company's  lands  and  goods  ?  Could  it,  on  the 
other  hand,  be  reduced  to  the  mere  benefit  of  a  contract  between 
the  shareholder  and  the  artificial  person  }  Ideal  walls  were  rocking 
and  material  interests  were  at  stake.  Was  it,  for  example,  decent 
of  the  Prussian  government  to  tax  first  the  income  of  the  company 
and  then  the  dividends  of  the  shareholders  and  yet  disclaim  all 
thought  of  double  taxation^? 

Pausing  here  for  a  moment,  we  may  notice  that  an  Englishman 

^  Gierke,  Genossenschaftsrecht,  iii.  285. 

^  Dernburg,  Pandekten,  ed.  5,  i.  146.  The  German  lawyer  has  had  a  good  many 
diflferent  types  of  association  to  consider,  such  as  the  Gesellschaft  des  biirgerlichen  Rechtes, 
the  offene  Handelsgesellschaft,  the  Kommanditgesellschaft^  the  Kommanditgesellschaft  auf 
Aktien,  and  the  Aktiengesellschaft ;  and,  so  I  understand,  the  legislature  had  not  explicitly 
told  him  which,  if  any,  of  these  types  were  to  display  personality.  So  a  large  room  was 
left  for  rival  '  constructions.' 


Translators  Introduction. 


xxiii 


will  miss  a  point  in  the  history  of  political  theory  unless  he  knows 
that  in  a  strictly  legal  context  the  Roman  societas,  the  French 
societe,  and  the  German  GesellscJiaft  should  be  rendered  by  the 
English  partnersJiip  and  by  no  other  word.  Also  he  should  know 
that,  just  as  the  English  lawyer  maintains  that  our  English  '  firm  ' 
is  a  mere  collective  name  for  the  partners  and  displays  no  '  artificial 
personality,'  so  also  he  will  be  taught  in  Germany  that  the  Roman 
societas  and  the  German  GesellscJiaft  are  not  'juristic  persons.' 
Now-a-days  it  will  perhaps  be  added  that  the  German  GesellscJiaft 
— and  the  same  would  be  said  of  the  English  partnership — shews  a 
tendency  to  develop  towards  corporate  organization,  from  which 
tendency  the  extremely  '  individualistic '  societas  of  the  Romans 
was  wholly  free\  That  is  a  small  matter  ;  but  it  is  a  great  matter 
that  before  the  end  of  the  Middle  Ages  the  Roman  word  for 
partnership  was  assuming  a  vastly  wide  meaning  and,  under  the 
patronage  of  Ciceronian  comparisons^  was  entering  the  field  of 
politics.  '  Human  Society'  should  be  the  partnership  of  mankind ; 
*  Civil  Society '  should  be  the  partnership  of  citizens  ;  '  the  Origin 
of  Civil  Society '  should  be  a  Social  Contract  or  contract  of  part- 
nership. If  Rousseau  writes  of  le  Contrat  Social  and  Pothier  of 
le  Contrat  de  Societe,  there  should  be,  and  there  is,  a  link  between 
their  dissimilar  books,  and  a  German  can  say  that  both  discussed 
the  GesellscJiaftsvertrag,  the  one  with  passion,  the  other  with  erudi- 
tion. Here  then  we  face  one  of  the  historical  problems  that 
Dr  Gierke  raises.  How  came  it  about  that  political  theory,  which 
went  to  the  lawyers  for  most  of  its  ideas,  borrowed  the  contract  of 
partnership  rather  than  the  apparently  far  more  appropriate  act  of 
incorporation  In  brief  the  answer  is  that  the  current  doctrine  of 
corporations,  the  classical  and  Innocentian  doctrine,  stood  beneath 
the  level  of  philosophic  thought.  A  merely  fictitious  personality, 
created  by  the  State  and  shut  up  within  the  limits  of  Private  Law, 
was  not  what  the  philosopher  wanted  when  he  went  about  to 
construct  the  State  itself. 

And  then  political  philosophy  reacted  upon  legal  theory.  When 
the  State  itself  had  become  a  merely  collective  unit — a  sum  of 
presently  existing  individuals  bound  together  by  the  operation  of 
their  own  wills — it  was  not  likely  that  any  other  group  would  seem 
capable  of  withstanding  similar  analysis.    Where  philosophy  and 

1  Dernburg,  loc.  cit.  -  See  below,  p.  187. 


xxiv     Political  Theories  of  the  Middle  Age. 


jurisprudence  met  in  such  systems  of  Natural  Law  as  were  fashion- 
able in  the  eighteenth  century,  the  tmiversitas  was  lowered  to  the 
rank  of  the  societas,  or  (but  this  was  the  same  process)  the  socictas 
was  raised  to  the  rank  of  the  universitas^.  Both  alike  exhibited  a 
certain  unity  in  plurality;  both  alike  might  be  called  'moral 
persons ' ;  but  in  the  one  case  as  in  the  other  this  personality  was 
to  be  thought  of  as  a  mere  labour-saving  device,  like  stenography 
or  the  mathematician's  symbols.  What  we  may  call  the  Bracket 
Theory  or  Expansible  Symbol  Theory  of  the  Corporation  really 
stands  in  sharp  contrast  with  the  Fiction  Theory  as  Savigny 
conceived  it,  though  sometimes  English  writers  seem  to  be  speaking 
of  the  one  and  thinking  of  the  other.  The  existing  corporators, 
who  in  the  one  scheme  are  mere  guardians  for  a  somewhat 
that  the  State  has  instituted,  become  in  the  other  scheme  the 
real  '  subjects '  of  those  rights  and  duties  that  are  ascribed  to 
the  corporation,  though  legal  art  usually  keeps  these  '  subjects ' 
enclosed  within  a  bracket.  However,  despite  this  tendency  of  a 
'  natural '  jurisprudence — a  tendency  which  seems  to  have  left  an 
abiding  mark  in  the  legal  terminology  of  Scotland — the  Romanists 
of  Germany  had  been  holding  fast  the  doctrine  that  the  tmiversitas 
is,  while  the  societas  is  not,  a  person,  when  the  joint-stock  company, 
a  new  power  in  the  theoretic  as  in  the  economic  world,  began  to 
give  trouble.  That  the  AktiengesellscJiaft  was  a  corporation  was 
generally  admitted  ;  but  of  all  corporations  a  joint-stock  company 
is  that  which  seems  to  offer  itself  most  kindly  to  the  individualistic 
analyst.  When  all  is  said  and  done,  and  all  due  praise  has  been 
awarded  to  the  inventors  of  a  beautiful  logarithm,  are  not  these 
shareholders,  these  men  of  flesh  and  blood,  the  real  and  only 
sustainers  of  the  company's  rights  and  duties?  So  great  a  Romanist 
as  Ihering-  trod  this  '  individualistic '  or  '  collectivistic '  path,  and  in 
America  where  law  schools  flourish,  where  supreme  courts  are 
many  and  the  need  for  theory  is  more  urgent  than  it  is  in  England, 
highly  interesting  attempts  have  been  made  to  dispel  the  Fiction, 
or  rather  to  open  the  Bracket  and  find  therein  nothing  but 
contract-bound  men^.    Contract,  that  greediest  of  legal  categories, 

^  Gierke,  Johannes  Althusius,  103. 

^  See  especially  Geist  des  rom.  Rechts,  vol.  iii.,  p.  343. 

^  Dissatisfaction  with  the  Fiction — or,  as  Americans  sometimes  say,  with  'the 
Entity' — is  expressed  in  some  well-known  text-books,  e.g.,  Taylor,  Law  of  Private 
Corporations,  §  60 ;  Morawetz,  Law  of  Private  Corporations,  ch.  I. 


Translator  s  Introduction.  XXV 


which  once  wanted  to  devour  the  State,  resents  being  told  that  it 
cannot  painlessly  digest  even  a  joint-stock  company.  Maine's 
famous  sentence  about  Contract  and  Status  might  indeed  be  boldly 
questioned  by  anyone  who  remembered  that,  at  least  for  the 
philologian,  the  Roman  Status  became  that  modern  State,  Etat, 
Staat  which  refused  to  be  explained  by  Contract  into  a  mere  '  Civil 
Society.'  Few  words  have  had  histories  more  adventurous  than 
that  of  the  word  which  is  the  State  of  public  and  the  estate  of  our 
private  law,  and  which  admirably  illustrates  the  interdependence 
that  exists  between  all  parts  of  a  healthily  growing  body  of 
jurisprudence.  Still,  though  the  analytic  powers  of  Contract  are 
by  no  means  what  they  once  seemed  to  be,  many  will  think  them 
equal  to  the  task  of  expanding  what  they  might  call  the  Corpora- 
tion Symbol. 

It  was  in  a  Germany  that  was  full  of  new  ideas  and  new  hopes 
that  a  theory  was  launched  which  styled  itself  'the  German 
Genossenschaftstheorie!  Even  the  hastiest  sketch  of  its  environ- 
ment, if  it  notices  the  appearance  of  the  joint-stock  company, 
should  give  one  word  to  the  persistence  in  Germany  of  agrarian 
communities  with  world-old  histories,  to  the  intricate  problems 
that  their  dissolution  presented,  and  to  the  current  complaint  that 
Roman  law  had  no  equitable  solution  for  these  questions  and  had 
done  scant  justice  to  the  peasant.  Nor  should  the  triumphs  of 
biological  science  be  forgotten.  A  name  was  wanted  which  would 
unite  many  groups  of  men,  simple  and  complex,  modern  and 
archaic ;  and  Geitossenschaft  was  chosen.  The  English  translator 
must  carefully  avoid  Partnership ;  perhaps  in  our  modern  usage 
Company  has  become  too  specific  and  technical ;  Society  also  is 
dangerous;  Fellowship  with  its  slight  flavour  of  an  old  England 
may  be  our  least  inadequate  word.  Beginning  with  Beseler's 
criticism  of  Savigny,  the  theory  gradually  took  shape,  especially  in 
Dr  Gierke's  hands,  and  a  great  deal  of  thought,  learning  and  con- 
troversy collected  round  it.  Battles  had  to  be  fought  in  many 
fields.  The  new  theory  was  to  be  philosophically  true,  scientifically 
sound,  morally  righteous,  legally  implicit  in  codes  and  decisions, 
practically  convenient,  historically  destined,  genuinely  German,  and 
perhaps  exclusively  Germanistic\    No,  it  seems  to  say,  whatever 

^  However,  some  Romanists  of  repute  have  asserted  their  right  to  adopt  and  have 
adopted  this  theory.  See  in  particular  Regelsberger,  Pandekten,  vol.  I.  p.  289  ff.  See 
also  Dernburg,  Pandekten,  §  59. 


xxvi      Political  Theories  of  the  Middle  Age, 


the  Roman  universitas  may  have  been — and  Dr  Gierke  is  for 
pinning  the  Roman  jurists  to  Savignianism — our  German  Fellow- 
ship is  no  fiction,  no  symbol,  no  piece  of  the  State's  machinery,  no 
collective  name  for  individuals,  but  a  living  organism  and  a  real 
person,  with  body  and  members  and  a  will  of  its  own.  Itself  can 
will,  itself  can  act ;  it  wills  and  acts  by  the  men  who  are  its  organs 
as  a  man  wills  and  acts  by  brain,  mouth  and  hand.  It  is  not  a 
fictitious  person ;  it  is  a  Gesaimntperson,  and  its  will  is  a  Gesammt- 
iville\  it  is  a  group-person,  and  its  will  is  a  group-will^ 

This  theory,  which  we  might  call  Realism,  may  seem  to  carry 
its  head  among  the  clouds,  though  no  higher  perhaps  than  the 
Fiction  Theory ;  but  a  serious  effort  has  been  made  to  give  it  feet 
that  walk  upon  the  earth.  In  one  long  book''  Dr  Gierke  has  in 
great  detail  argued  his  case  throughout  the  whole  domain  of 
practicable  modern  law,  contending,  not  indeed  that  all  German 
'authority'  (as  an  English  lawyer  would  say)  is  on  his  side,  but 
that  he  has  the  support  of  a  highly  respectable  body  of  authority, 
express  and  implied,  and  that  legislatures  and  tribunals  fall  into 
self-contradiction  or  plain  injustice  when  they  allow  themselves  to 
be  governed  by  other  theories.  Nothing  could  be  more  concrete 
than  the  argument,  and,  though  it  will  sometimes  shew  an  affection 
for  *  the  German  middle  age '  and  a  distrust  of  ancient  Rome,  it 
claims  distinctively  modern  virtues :  for  instance,  that  of  giving  of 
the  shareholder's  'share'  the  only  lawyerly  explanation  that  will 
stand  severe  strain.  Then  in  another  book  our  author  has  been 
telling  the  history  of  German  Fellowship  Lawl 

Let  us  try  to  imagine — we  are  not  likely  to  see — a  book  with 
some  such  title  as  English  Fellowship  Law,  which  in  the  first  place 

^  The  works  of  Dr  Gierke  which  deal  with  this  matter  are  (i)  Das  deutsche 
Genossenschaftsrecht,  whereof  three  vohimes  were  published  in  1868,  1873,  and  1881  ; 
(2)  Die  Genossenschaftstheorie  und  die  deutsche  Rechtsprechung,  1887;  (3)  The  first 
volume  of  Deutsches  Privatrecht,  1895,  which  contains  a  more  succinct  and  more  recent 
statement ;  (4)  The  monograph  on  Johannes  Althusius,  1880,  which  should  be  well 
known  to  all  students  of  political  theory.  Those  who  would  rather  begin  their  study  of 
the  realistic  theory  in  French  than  in  German  may  be  sent  to  A.  Mestre,  Les  Personnes 
Morales,  1899.  French  lawyers  have  been  conservative,  and  Savignianism  was  in 
harmony  with  the  spirit  of  the  Codes ;  nevertheless  the  doctrine  of  the  real  group-will  is 
finding  disciples.  The  only  English  statement  that  I  have  seen  of  this  theory  is  by  Ernst 
Freund,  The  Legal  Nature  of  Corporations,  University  Press,  Chicago,  1897. 

-  This  is  the  Genossenschaftstheorie  of  1887. 

3  This  is  the  Genossenschaftsrecht  of  r868 — 73 — 81. 


Translator  s  Introduction. 


XXV 11 


described  the  structure  of  the  groups  in  which  men  of  English  race 
have  stood  from  the  days  when  the  revengeful  kindred  was  pur- 
suing the  blood  feud  to  the  days  when  the  one-man-company  is 
issuing  debentures,  when  parliamentary  assemblies  stand  three 
deep  above  Canadian  and  Australian  soil  and  '  Trusts  and  Cor- 
porations'  is  the  name  of  a  question  that  vexes  the  great 
Republic  of  the  West.  Within  these  bounds  lie  churches,  and 
even  the  medieval  church,  one  and  catholic,  religious  houses, 
mendicant  orders,  non-conforming  bodies,  a  presbyterian  system, 
universities  old  and  new,  the  village  community  which  Germanists 
revealed  to  us,  the  manor  in  its  growth  and  decay,  the  township, 
the  New  England  town,  the  counties  and  hundreds,  the  chartered 
boroughs,  the  gild  in  all  its  manifold  varieties,  the  inns  of  court, 
the  merchant  adventurers,  the  militant  '  companies '  of  English 
condottieri  who  returning  home  help  to  make  the  word  '  company ' 
popular  among  us,  the  trading  companies,  the  companies  that 
become  colonies,  the  companies  that  make  war,  the  friendly 
societies,  the  trade  unions,  the  clubs,  the  group  that  meets  at 
Lloyd's  Coffee-house,  the  group  that  becomes  the  Stock  Exchange, 
and  so  on  even  to  the  one-man-company,  the  Standard  Oil  Trust 
and  the  South  Australian  statutes  for  communistic  villages.  The 
English  historian  would  have  a  wealth  of  group-life  to  survey 
richer  even  than  that  which  has  come  under  Dr  Gierke's  eye, 
though  he  would  not  have  to  tell  of  the  peculiarly  interesting  civic 
group  which  hardly  knows  whether  it  is  a  municipal  corporation  or 
a  sovereign  republic.  And  then  we  imagine  our  historian  turning 
to  inquire  how  Englishmen  have  conceived  their  groups  :  by  what 
thoughts  they  have  striven  to  distinguish  and  to  reconcile  the 
manyness  of  the  members  and  the  oneness  of  the  body.  The 
borough  of  the  later  middle  ages  he  might  well  regard  with 
Dr  Gierke  as  a  central  node  in  the  long  story.  Into  it  and  out 
from  it  run  most  of  the  great  threads  of  development,  economic  and 
theoretical.  The  borough  stretches  one  hand  back  to  the  village 
community  and  the  other  forward  to  freely  formed  companies  of 
all  sorts  and  kinds.  And  this  Dr  Gierke  sets  before  us  as  the  point 
at  which  the  unity  of  the  group  is  first  abstracted  by  thought  and 
law  from  the  plurality,  so  that  '  the  borough '  can  stand  out  in 
contrast  to  the  sum  of  existing  burgesses  as  another  person,  but 
still  as  a  person  in  whom  they  are  organized  and  embodied. 


xxviii     Political  Theories  of  the  Middle  Age. 


To  his  medieval  Germans  Dr  Gierke  attributes  sound  and 
wholesome  thoughts,  and  in  particular  a  deep  sense  of  the  organic 
character  of  all  permanent  groups  great  and  small.  Not  that, 
according  to  him,  their  thoughts  were  sharply  defined  :  indeed  he 
has  incurred  the  dissent  of  some  of  his  fellow  Germanists  by 
refusing  to  carry  back  to  the  remotest  time  the  distinction  between 
co-ownership  and  corporate  ownership.  In  deeply  interesting 
chapters  he  has  described  the  differentiating  process  which  gives 
us  these  two  ideas.  That  process  was  prospering  in  the  German 
towns  when  the  catastrophe  occurred.  When  German  law  was 
called  upon  to  meet  the  alien  intruder,  it  had  reached  'the  stage  of 
abstraction,'  but  not  *  the  stage  of  reflection.'  It  had  its  Korper- 
scJiaftsbegriff,  but  no  KorporationstJieorie.  It  could  co-ordinate 
Man  and  Community  as  equally  real  persons  of  different  kinds  ; 
but  it  had  never  turned  round  to  ask  itself  what  it  was  doing. 
And  so  down  it  went  before  the  disciplined  enemy  :  before  the 
theory  which  Italian  legists  and  decretists  had  been  drilling. 

Then  in  another  volume  we  have  the  history  of  this  theory. 
We  should  misrepresent  our  author  if,  without  qualification,  we 
spoke  of  Italian  science  as  the  enemy.  All  technical  merits 
were  on  its  side ;  it  was  a  model  for  consequent  thinking.  Still, 
if  it  did  good,  it  did  harm.  Its  sacred  texts  were  the  law  of  an 
unassociative  people.  Roman  jurisprudence,  starting  with  a  strict 
severance  of  ins publiciLin  from  itts  privatum,  had  found  its  highest 
development  in  'an  absolutistic  public  law  and  an  individualistic 
private  law.'  Titius  and  the  State,  these  the  Roman  lawyers 
understood,  and  out  of  them  and  a  little  fiction  the  legal  universe 
could  be  constructed.  The  theory  of  corporations  which  derives 
from  this  source  may  run  (and  this  is  perhaps  its  straightest 
course)  into  princely  absolutism,  or  it  may  take  a  turn  towards 
mere  collectivism  (which  in  this  context  is  another  name  for  in- 
dividualism); but  for  the  thought  of  the  living  group  it  can  find 
no  place ;  it  is  condemned  to  be  '  atomistic '  and  '  mechanical' 
For  the  modern  German  '  Fellowship  Theory '  remained  the  task 
of  recovering  and  revivifying  '  the  organic  idea '  and  giving  to  it 
a  scientific  form. 

It  is  not  easy  for  an  Englishman  to  throw  his  heart  or  even 
his  mind  into  such  m.atters  as  these,  and  therefore  it  may  not 
be  easy  for  some  readers  of  this  book  at  once  to  catch  the  point  of 


Translator  s  Introdttctioii. 


xxix 


all  Dr  Gierke's  remarks  about  the  personality  of  States  and  Cor- 
porations. If  we  asked  why  this  is  so,  the  answer  would  be  a  long 
story  which  has  never  yet  been  duly  told.  However,  its  main 
theme  can  be  indicated  by  one  short  phrase  which  is  at  this 
moment  a  focus  of  American  politics:  namely,  'Corporations  and 
Trusts.'  That  puts  the  tale  into  three  words.  For  the  last 
four  centuries  Englishmen  have  been  able  to  say,  '  Allow  us  our 
Trusts,  and  the  law  and  theory  of  corporations  may  indeed  be 
important,  but  it  will  not  prevent  us  from  forming  and  maintaining 
permanent  groups  of  the  most  various  kinds :  groups  that,  behind 
a  screen  of  trustees,  will  live  happily  enough,  even  from  century 
to  century,  glorying  in  their  unincorporatedness.  If  Pope  Innocent 
and  Roman  forces  guard  the  front  stairs,  we  shall  walk  up  the 
back.'  From  the  age  when,  among  countless  other  unchartered 
fellowships,  the  Inns  of  Court  were  taking  shape,  to  the  age,  when 
monopolizing  trusts  set  America  ablaze,  our  law  of  corporations 
has  only  been  a  part  of  our  GenosseiischaftsrecJit,  and  not  perhaps 
the  most  important  part\  We  will  mention  but  one  example. 
If  we  speak  the  speech  of  daily  life,  we  shall  say  that  in  this 
country  for  some  time  past  a  large  amount  of  wealth  has  '  be- 
longed' to  religious  'bodies'  other  than  the  established  church, 
and  we  should  have  thought  our  religious  liberty  shamefully  im- 
perfect had  our  law  prevented  this  arrangement.  But  until  very 
lately  our  'corporation  concept'  has  not  stood  at  the  disposal  of 
Nonconformity,  and  even  now  little  use  is  made  of  it  in  this 
quarter:  for  our  'trust  concept'  has  been  so  serviceable.  Behind 
the  screen  of  trustees  and  concealed  from  the  direct  scrutiny  of 
legal  theories,  all  manner  of  groups  can  flourish  :  Lincoln's  Inn 
or  Lloyd's-  or  the  Stock  Exchange  or  the  Jockey  Club,  a  whole 
presbyterian  system,  or  even  the  Church  of  Rome  with  the  Pope 
at  its  head.    But,  if  we  are  to  visit  a  land  where  Roman  law  has 

^  See  the  Stat,  of  (1531 — 2)  23  Hen.  VIII.,  c.  10  :  lands  are  already  being  held  to  the 
use  of  unincorporated  'guilds,  fraternities,  coniminalities,  companies  or  brotherheads,' 
and  this  on  so  large  a  scale  that  King  Henry,  as  supreme  landlord,  must  interfere. 
Happily  the  lawyers  of  a  later  time  antedated  by  a  few  years  King  Henry's  dislike 
of '  superstition,'  and  therefore  could  give  to  this  repressive  statute  a  scope  far  narrower 
than  that  which  its  royal  author  assuredly  intended.  The  important  case  is  Porter''s 
Case,  I  Coke's  Reports,  22  b. 

2  At  length  incorporated  in  187 1:  see  F.  Martin,  History  of  Lloyd's,  pp.  356 — 7,  a 
highly  interesting  book. 


XXX      Political  Theories  of  the  Middle  Age. 


been  'received,'  we  must  leave  this  great  loose  'trust  concept'  at 
the  Custom  House,  and  must  not  for  a  moment  suppose  that  a 
meagre  fideicominissjnii  will  serve  in  its  stead.  Then  we  shall 
understand  how  vitally  important  to  a  nation — socially,  politically, 
religiously  important — its  Theory  of  Corporations  might  be. 

If  it  be  our  task  legally  to  construct  and  maintain  comfortable 
homes  wherein  organic  groups  can  live  and  enjoy  whatever  '  liberty 
of  association'  the  Prince  will  concede  to  them,  a  little,  but  only 
a  little,  can  be  done  by  means  of  the  Romanist's  co-ownership 
{condovmiiiLm^  Miteigentiim)  and  the  Romanist's  partnership 
{socictas,  Gesellschaff).  They  are,  so  we  are  taught,  intensely 
individualistic  categories :  even  more  individualistic  than  are  the 
parallel  categories  of  English  law,  for  there  is  no  'jointness' 
{GesavimthmidtscJiaff)  in  them.  If  then  our  Prince  keeps  the 
universitas,  the  corporate  form,  safe  under  lock  and  key,  our  task 
is  that  of  building  without  mortar.  But  to  keep  the  iiniversitas 
safe  under  lock  and  key  was  just  what  the  received  theory  enabled 
the  Prince  to  do.  His  right  to  suppress  collegia  illicita  was  supple- 
mented by  the  metaphysical  doctrine  that,  from  the  very  nature  of 
the  case,  '  artificial  personality '  must  needs  be  the  creature  of 
sovereign  power.  At  this  point  a  decisive  word  was  said  by 
Innocent  IV.  One  outspoken  legist  reckoned  as  the  fifty-ninth 
of  the  sixty-seven  prerogatives  of  the  Emperor  that  he,  and  only 
he,  makes  fictions :  '  Solus  princeps  fingit  quod  in  rei  veritate  non 
est\'  Thus  'the  Fiction  Theory'  leads  us  into  what  is  known 
to  our  neighbours  as  'the  Concession  Theory.'  The  corporation 
is,  and  must  be,  the  creature  of  the  State.  Into  its  nostrils  the 
State  must  breathe  the  breath  of  a  fictitious  life,  for  otherwise  it 
would  be  no  animated  body  but  individualistic  dust. 

Long  ago  English  lawyers  received  the  Concession  Theory 
from  the  canonists.  Bred  in  the  free  fellowship  of  unchartered 
Inns,  they  were  the  very  men  to  swallow  it  whole.  Blackstone 
could  even  boast  that  the  law  of  England  went  beyond  '  the  civil 
law'  in  its  strict  adhesion  to  this  theory-;  and  he  was  right,  for 
the  civilians  of  his  day  generally  admitted  that,  though  in  principle 
the  State's  consent  to  the  erection  of  a  corporation  was  absolutely 
necessary,  still  there  were  Roman  texts  which  might  be  deemed 

^  Lucas  de  Penna,  deed  by  Gierke,  Genossenschaftsrecht,  HI.  371. 
-  Comment,  i.  472. 


Translator  s  Introduction, 


XXXI 


to  have  given  that  consent  in  advance  and  in  general  terms  for 
the  benefit  of  corporations  of  certain  innocuous  kinds.  But  then, 
what  for  the  civilians  was  a  question  of  life  and  death  was  often 
in  England  a  question  of  mere  convenience  and  expense,  so  wide 
was  that  blessed  back  stair.  The  trust  deed  might  be  long ;  the 
lawyer's  bill  might  be  longer  ;  new  trustees  would  be  wanted  from 
time  to  time  ;  and  now  and  again  an  awkward  obstacle  would 
require  ingenious  evasion  ;  but  the  organized  group  could  live  and 
prosper,  and  be  all  the  more  autonomous  because  it  fell  under 
no  solemn  legal  rubric.  Lawyers  could  even  say  that  the  common 
law  reckoned  it  a  crime  for  men  '  to  presume  to  act  as  a  corpora- 
tion'; but  as  those  lawyers  were  members  of  the  Inns  of  Court, 
we  should  hardly  need  other  proof — there  is  plenty  to  be  had — 
that  the  commission  of  this  crime  (if  crime  it  were)  was  both  very 
difificult  and  wholly  needless  \  Finally  it  became  apparent  that, 
unless  statute  law  stood  in  the  way,  even  a  large  company  trading 
with  a  joint-stock,  with  vendible  shares  and  a  handsome  measure 
of  '  limited  liability '  could  be  constructed  by  means  of  a  trust 
deed  without  any  incorporation'^ 

Nowhere  has  the  Concession  Theory  been  proclaimed  more 
loudly,  more  frequently,  more  absolutely,  than  in  America  ;  no- 
where has  more  lip-service  been  done  to  the  Fieschi.  Ignorant 
men  on  board  the  'Mayflower'  may  have  thought  that,  in  the 
presence  of  God  and  of  one  another,  they  could  covenant  and 
combine  themselves  together  into  '  a  civil  body  politicV  Their 
descendants  know  better.  A  classical  definition  has  taught  that 
*  a  Corporation  is  a  Franchise,'  and  a  franchise  is  a  portion  of 
the  State's  power  in  the  hands  of  a  subject*.    A  Sovereign  People 

^  Lindley,  Company  Law,  Bk.  i.,  ch.  5,  sect.  i.  In  the  curious  case  of  Lloyd  v. 
Loaring,  6  Ves.  773,  Lord  Eldon  had  before  him  a  lodge  of  Freemasons  which  had 
made  an  imprudent  display  of  what  a  Realist  would  call  its  corporate  character.  His 
lordship's  indignation  was  checked  by  the  thought  that  '  Mr  Worseley's  silver  cup ' 
belonged  to  '  the  Middle  Temple.' 

-  The  directors  are  bound  to  give  notice  to  every  one  who  gives  credit  that  he  has 
nothing  to  look  to  beyond  the  subscribed  fund,  and  that  no  person  will  be  personally 
liable  to  him.  As  to  these  'attempts  to  limit  liability,'  see  Lindley,  Company  Law, 
Bk.  n.,  ch.  6,  sec.  2. 

^  The  Mayflower  Compact  can  be  found,  among  other  places,  in  Macdonald,  Select 
Charters,  p.  33. 

^  Kent,  Comment.  Lect.  33  :  'A  corporation  is  a  franchise  possessed  by  one  or  more 
individuals,  who  subsist  as  a  body  politic  under  a  special  denomination,  and  are  vested, 


xxxii     Political  Theories  of  tlie  Middle  Age. 


has  loved  to  deck  itself  in  the  purple  of  the  Byzantine  Basileus 
and  the  triple  crown  of  the  Roman  Pontiff.  But  the  picture  has 
another  side.  Those  '  Trusts '  that  convulsed  America  were 
assuredly  organized  bodies  which  acted  as  units,  and  if  ever  a 
Gesaimntivillc  was  displayed  in  this  world,  assuredly  they  dis- 
played it :  but  some  of  them  were  not  corporationsS  A  reader 
of  American  trust  deeds  may  well  find  himself  asking  what, 
beyond  a  few  highly  technical  advantages,  an  incorporating 
act  could  bestow.  No  doubt,  if  the  State  mutters  some  mystical 
words  there  takes  place  in  the  insensible  substance  of  the  group, 
some  change  of  which  lawyers  must  say  all  that  a  Roman  or 
Romanesque  orthodoxy  exacts  ;  but  to  the  lay  eyes  of  debtors 
and  creditors,  brokers  and  jobbers,  all  sensible  accidents  seem 
much  what  they  were.  Already  in  1694  in  the  stock  and  share 
lists  that  John  Houghton  was  publishing  the  current  prices  of 
'  actions '  in  unincorporated  bodies  were  placed  alongside  the  prices 
of  the  stocks  of  chartered  corporations-.  Certainly  it  will  be 
curious,  but  it  will  not  be  inexplicable,  if  when  the  Concession 
Theory  has  perished  in  other  lands  it  still  lurks  and  lingers  in 
England  or  among  men  of  English  race.  Probably  our  foreign 
critics  would  not  suffer  us  to  say  that  it  does  us  no  harm  ;  but 
they  would  confess  that  the  harm  which  it  does  is  neither  very 
grave  nor  very  obvious.  A  certain  half-heartedness  in  our  treat- 
ment of  unincorporate  groups,  whose  personality  we  will  not 
frankly  recognize  while  we  make  fairly  adequate  provision  for 
their  continuous  life,  is  the  offence  against  jurisprudence  with 
which  we  might  most  fairly  be  charged,  and  it  is  an  offence  which 
tends  to  disappear  now  that  groups  of  many  kinds,  cricket  clubs, 
religious  societies,  scientific  societies,  and  so  forth,  are  slowly  taking 
advantage  of  that  offer  of  legal  corporateness  which  has  been  open 
to  them  for  nearly  forty  years^  and  are  discovering  that  it  is  well  to 
be  regarded  as  persons. 

We  can  therefore  imagine  a  German  Realist  bringing  to  bear 

by  the  policy  of  the  law,  with  the  capacity  of  perpetual  succession,  and  of  acting  in 
several  respects,  however  numerous  the  association  may  be,  as  a  single  individual.' 

1  Of  late — so  we  understand  on  this  side  of  the  sea — some  of  the  largest  combinations 
of  capitalists  have  taken  corporate  form  under  the  laws  of  New  Jersey. 

2  Houghton,  A  Collection  for  the  Improvement  of  Trade.  See  especially  No.  98  ff. 
where  the  author  gives  an  account  of  joint-stock  enterprise.  - 

*  Companies  Act,  1862,  sec.  6. 


Translator  s  Introduction. 


XXXlll 


upon  English  law  some  such  criticism  as  the  following : — '  There 
is  much  in  your  history  that  we  can  envy,  much  in  your  free  and 
easy  formation  of  groups  that  we  can  admire.  That  great  '  trust 
concept'  of  yours  stood  you  in  good  stead  when  the  days  were 
evil :  when  your  Hobbes,  for  example,  was  instituting  an  un- 
savoury comparison  between  corporations  and  ascarides\  when 
your  Archbishop  Laud  (an  absolutist  if  ever  there  was  one)  brought 
Corporation  Theory  to  smash  a  Puritan  Trust ^,  and  two  years 
afterwards  his  friend  Bishop  Montague  was  bold  enough  to  call 
the  king's  attention  to  the  shamelessly  unincorporate  character  of 
Lincoln's  Inn^  And  your  thoroughly  un-Roman  '  trust  concept ' 
is  interesting  to  us.  We  have  seen  the  like  of  it  in  very  ancient 
Lombard  charters^;  and,  by  the  way,  it  was  Georg  Beseler  who 
suggested  to  the  present  Chief  Justice  of  Massachusetts  the  quarter 
in  which  the  origin  of  your  trusts  might  be  founds  Also  the 
connexion  between  trust  and  group  takes  back  our  thoughts  all 
the  way  to  the  Lex  Salica  where  the  tntstis  is  a  group  of  comrades. 
Then,  again,  we  can  well  understand  that  English  lawyers  were 
concerned  to  deny,  at  least  in  words,  the  personality  of  what  you 
call  an  'unincorporate  body' — a  term  which  seems  to  us  to  make 
for  truth,  but  also  for  self-contradiction.  An  open  breach  with 
Innocentian  orthodoxy  and  cosmopolitan  enlightenment  seemed 
impossible,  and  so  you  maintained  that  the  unincorporate  body 
could,  as  we  should  say,  be  '  construed '  as  a  mere  sum  of  in- 
dividuals bound  only  by  co-ownership  and  agreement.  But  you 
must  excuse  us  for  doubting  whether  you  have  pressed  this  theory 
to  its  logical  conclusion.  For  example,  we  feel  bound  to  ask 
whether,  when  a  man  is  elected  to  one  of  your  clubs  (and  you 
have  been  great  makers  of  clubs),  the  existing  members  execute 
an  assignment  to  him  of  a  share  in  the  club-house  and  its  furniture, 


^  Leviathan,  ii.  29  (Works,  ed.  Molesworth,  vol.  iii.,  p.  321):  'like  worms  in 
the  entrails  of  a  natural  man.' 

2  For  this  case  of  the  Feoffees  of  Impropriations,  see  Gardiner,  Hist,  of  England,  ann.. 
1633,  vol.  vn.,  258. 

Black  Book  of  Lincoln's  Inn,  vol.  n.,  p.  333,  ann.  1635. 
Schultze,  Die  Lombardische  Treuhand,  Breslau,  1895. 
^  O.  W.  Holmes,  Law  Quart.  Rev.  i.  163  :  '  The  feoffee  to  uses  of  the  early  English 
law  corresponds  point  by  point  to  the  Salman  of  the  early  German  law  as  described 
by  Beseler  fifty  years  ago.' 

M.  c 


xxxiv     Political  Theories  of  the  Middle  Age. 


and  whether,  when  he  resigns,  he  executes  a  release  to  the  con- 
tinuing members.    If  that  be  not  so,  and  we  fancy  that  it  is  not, 
election  to,  and  resignation  of,  membership  in  '  unincorporate 
bodies '   should   appear  somewhat  prominently  in   your  books 
among  the  modes  in  which  rights  are  acquired  and  lost,  and  then 
it  would  be  plain  enough  that,  beside  a  Korporationstheorie  of 
Italian  origin,  you  have  a  Korperschaftsbegriff  of  your  own :  an 
idea  of  a  '  bodiliness '  which  is  not  the  effect  of  the  State's  fiat. 
Then  why,  we  should  like  to  know,  did  your  legislature  lately 
impose  a  tax  on  the  property  of  '  unincorporate  bodies '  as  well 
as  on  that  of  corporate  bodies  ?    When  the  property  of  individuals 
and  of  corporations  was  already  taxed,  was  there  still  property 
that  escaped  taxation^?    And  what  can  your  legislature  mean 
when  it  says  that  in  Acts  of  Parliament  (unless  a  contrary  in- 
tention appears)  the  word  '  person '  is  to  include  *  any  body  of 
persons  corporate  or  unincorporated^'?     If  once  we  are  allowed 
to  see  personality  wherever  we  see  bodiliness,  the  victory  of 
Realism  is  secure,  though  an  old  superstition  may  die  very  hard. 
Some  day  the  historian  may  have  to  tell  you  that  the  really 
fictitious  fiction  of  English  law  was,  not  that  its  corporation  was 
a  person,  but  that  its  unincorporate  body  was  no  person,  or  (as 
you  so  suggestively  say)  was  nobody.     There  are  many  other 
questions  that  we  should  like  to  ask  of  you.    Why,  for  instance, 
are  free-born  and  commercially-minded  Englishmen  prohibited  by 
statute  from  trading  in  large  partnerships^?    Is  it  not  because  your 
good  sense  and  experience  have  taught  you  that,  do  what  you  will 
and  say  what  you  will,  the  large  trading  group  will  assuredly 
display,  as  it  does  in  America,  the  phenomena  of  corporateness 
and  therefore  ought  to  stand  under  the  law  for  corporations  ?  And 
do  you  not  think  that  some  part  at  least  of  the  appalling  mess — 
forgive  us — the  appalling  mess  that  you  made  of  your  local 
government  was  due  to  a  bad  and  foreign  theory  which,  coupling 
corporateness  with  princely  '  privilege,'  refused  to  recognize  and 
foster  into  vigour  the  bodiliness  that  was  immanent  in  every 

1  Customs  and  Inland  Revenue  Act,  1885,  sec.  rr  :  'Whereas  certain  property,  by 
reason  of  the  same  belonging  to  or  being  vested  in  bodies  corporate  or  unincorporate, 
escapes  liability  to  probate,  legacy,  or  succession  duty.' 
Interpretation  Act,  1889,  sec.  19. 

^  Companies  Act,  1862,  sec.  4. 


Translator  s  Introdtiction. 


XXXV 


English  township,  in  every  rural  Ge7neinde}  Even  our  theory- 
ridden  Romanists  were  not  guilty  of  that  fatal  blunder  which  you 
are  now  endeavouring  tardily  to  repair  by  the  invention  of  Parish 
Councils  and  from  which  some  of  your  less  pedantic  kinsmen  in 
the  colonies  kept  themselves  free  when  they  suffered  'the  New 
England  town'  to  develop  its  inherent  corporateness^' 

To  say  these  few  words  of  our  own  law  has  seemed  advisable 
in  order  that  foreign  controversies  over  the  nature  and  origin  of 
a  corporation's  or  a  State's  personality  may  be  the  better  under- 
stood. We  may  spend  one  moment  more  in  observing  that  the 
English  Trust,  nurtured  though  it  was  within  the  priviest  recesses 
of  Private  Law,  and  educated,  if  we  may  so  say,  in  a  private 
school,  has  played  a  famous  part  on  the  public,  the  world-wide, 
and  world-historic  stage.  When  by  one  title  and  another  a  ruler- 
ship  over  millions  of  men  in  the  Indies  had  come  to  the  hands 
of  an  English  Fellowship,  this  corporation  aggregate  was  (some- 
what unwillingly)  compelled  by  Acts  of  Parliament  to  hold  this 
precious  thing,  this  '  object  of  rights,'  this  rulership,  upon  trust 
for  a  so-called  corporation  sole,  namely,  the  British  Crown-.  If 
at  the  present  time  our  courts  and  lawgivers  find  it  needless  openly 
to  declare  that  the  colonies  are,  to  use  the  old  phrase,  '  bodies 
corporate  and  politic  in  deed,  fact  and  name,'  this  is  because  our 
hard-worked  Crown  is  supposed  to  hold  some  property  for  or  '  in 
right  of  the  Dominion  of  Canada  and  other  property  for  or  'in 
right  of  the  Province  of  Ontario,  and  a  court,  after  hearing  the 
attorneys-general  for  these  beneficiaries,  these  communities  or 
commonwealths,  will  decide  how  much  is  held  for  one,  and  how 
much  for  another.  Certainly  we  work  our  Trust  hard  and  our 
Crown  harder,  and  it  seems  possible  that  some  new  thoughts  or 
some  renovation  of  old  thoughts  about  the  personality  of  the 
organized  group  might  shew  us  straighter  ways  to  desirable  and 
even  necessary  ends. 

In  the  days  when  Queen  Elizabeth  was  our  '  Prince,'  she  did 

1  A  case  of  1497  (Year  Book,  Trin.  12  Hen.  VII.,  f.  27,  pi.  7)  marks  the  beginning 
of  an  unhappy  story.    See  Toulmin  Smith,  The  Parish,  ed.  2,  p.  269. 

-  The  theory  finds  explicit  statement  in  the  Act  of  1833  (3  &  4  Will.  IV.,  c.  85), 
preamble  :  '  And  whereas  it  is  expedient  that  the  said  territories  now  under  the  govern- 
ment of  the  said  Company  be  continued  under  such  government,  but  in  trust  for  the 
Crown  of  the  United  Kingdom.' 

C  2 


XXXV  i      Political  Theories  of  the  Middle  Age. 


not  forbid  her  secretary  to  write  in  Latin  de  Reptiblica  Anglortmi^ 
or  in  English  of  the  Covunomvealth  of  England:  Prince  and  Re- 
pubHc  were  not  yet  incompatibles.  Events  that  happened  in  the 
next  century  outlawed  some  words  that  once  were  good  and  lawful, 
and  forced  us  to  make  the  most  that  we  could  of  the  '  Subject ' 
(or  subjectified  Object)  that  lies  in  the  Jewel  House  at  the  Tower. 
Much  we  could  make  of  it,  but  not  quite  all  that  was  needful. 
Not  having  always  been  a  punctual  payer,  the  Crown  was  not 
always  a  good  borrower,  and  so  our  Statute  Book  taught  us  to 
say  that  the  National  Debt  was  owed,  not  by  the  Crown,  but  by 
'  the  Publick';  and  this  Public  looks  much  like  a  Respnblica  which, 
to  spare  the  feelings  of  '  a  certain  great  personage,'  has  dropped  its 
first  syllabled  Those  who  rely  upon  'the  faith  of  the  Public' 
receive  their  annuities  in  due  season,  even  if  we  have  no  neat 
theory  about  the  relationship  between  that  '  passive  subject,'  the 
Public,  which  owes  them  money,  and  that  '  active  subject,'  the 
Crown,  to  which  they  pay  their  taxes.  Possibly  the  Crown  and 
the  Public  are  reciprocally  trustees  for  each  other  ;  possibly  there 
is  not  much  difference  now-a-days  between  the  Public,  the  State, 
and  the  Crown^,  for  we  have  not  appraised  the  full  work  of  the 
Trust  until  we  are  quitting  the  province  of  jurisprudence  to  enter 
that  of  political  or  constitutional  theory. 

In  the  course  of  the  eighteenth  century  it  became  a  parlia- 
mentary commonplace  that  'all  political  power  is  a  trust';  and 
this  is  now  so  common  a  commonplace  that  we  seldom  think  over 
it.    But  it  was  useful      Applied  to  the  kingly  power  it  gently 

1  Already  in  1697  (8  &  9  Will.  III.,  c.  20,  sec.  20)  provision  is  made  for  'the 
better  restoring  of  the  credit  of  the  Nation.'  There  follow  a  good  many  financial 
transactions  between  'the  Publick'  and  the  East  India  Company.  For  example  in  1786 
'the  Publick  stands  indebted'  to  the  Company  in  a  sum  of  four  millions  and  upwards. 
Stat.  26  Geo.  III.,  c.  62. 

2  Pensions  (Colonial  Service)  Act,  1887,  sec.  8  :  '  The  expressions  '  permanent  civil 
service  of  the  State,'  '  permanent  civil  service  of  Her  Majesty,'  and  '  permanent  civil 
service  of  the  Crown '  are  hereby  declared  to  have  the  same  meaning.' 

^  At  the  time  when  these  words  were  being  written  one  of  Her  Majesty's  Principal 
Secretaries  of  State  was  '  operating  '  on  a  magnificent  scale  with  our  '  trust  concept.' 
Her  Majesty's  Government,  he  was  repeatedly  saying,  is  (or  are)  a  trustee  (or  trustees) 
for  'the  whole  Empire.'  Already  in  Locke's  Essay  on  Civil  Government  (e.g.  sees.  142, 
149)  a  good  deal  is  said  of  trust  and  breach  of  trust.  As  the  beneficiary  (cestui  que  trust) 
who  seeks  the  enforcement  of  a  trust  is  not  necessarily  or  even  normally  the  trustor 
or  creator  of  the  trust,  the  Introduction  of  talk  about  trusts  into  such  work  as  Locke's 
serves  to  conceal  some  of  the  weak  points  in  the  contractual  theory  of  Government. 


Translator  s  Introdtiction.  xxxvii 


relaxed  that  royal  chord  in  our  polity  which  had  been  racked 
to  the  snapping  point  by  Divine  right  and  State  religion.  Much 
easier  and  much  more  English  was  it  to  make  the  king  a  trustee 
for  his  people  than  to  call  him  officer,  official,  functionary,  or  even 
first  magistrate.  The  suggestion  of  a  duty,  enforceable  indeed, 
but  rather  as  a  matter  of  '  good  conscience '  than  as  a  matter  of 
'strict  law'  was  still  possible;  the  supposition  that  God  was  the 
author  of  the  trust  was  not  excluded,  and  the  idea  of  trust  was 
extremely  elastic.  For  of  trusts  we  know  many,  ranging  from 
those  which  confer  the  widest  discretionary  powers  to  those  which 
are  the  nudest  of  nude  rights  and  the  driest  of  legal  estates. 
Much  has  happened  within  and  behind  that  thought  of  the  king's 
trusteeship :  even  a  civil  death  of  '  personal  government,'  an 
euthanasia  of  monarchy.  And  now  in  the  year  1900  the  banished 
Commonwealth,  purged  of  regicidal  guilt,  comes  back  to  us  from 
Australia  and  is  inlawed  by  Act  of  Parliament.  Wonderful 
conjuring  tricks  with  a  crown  or  a  basket  {fisais)  may  yet  be 
played  by  deft  lawyers,  especially  by  such  as  are  familiar  with 
trusts  for  '  unincorporate  bodies ' ;  but  we  may  doubt  whether 
they  will  much  longer  be  able  to  suppress  from  legal  records  the 
thought  that  was  in  Bracton's  mind  when  he  spoke  of  the  uni- 
versitas  regni^.  '  The  crown,'  said  Coke,  '  is  an  hieroglyphic  of 
the  laws-.'  Such  hieroglyphics,  personified  dignities,  abstract 
rulerships,  subjectified  crowns  and  baskets  are  (so  the  realistic 
historian  would  tell  us)  the  natural  outcome  of  a  theory  which 
allows  a  real  personality  and  a  real  will  only  to  Jameses  and 
Charleses  and  other  specimens  of  the  zoological  genus  ho7no  and 
yet  is  compelled  to  find  some  expression,  however  clumsy,  for 
the  continuous  life  of  the  State.  Names,  he  might  add,  we  will 
not  quarrel  over.  Call  it  Crown,  if  you  please,  in  your  Statute 
Book,  and  Empire  in  your  newspapers  ;  only  do  not  think,  or 
even  pretend  to  think,  of  this  mighty  being  as  hieroglyphic  or  as 
persona  ficta  or  as  collective  name. 

In  Germany  (for  we  must  return)  the  Concession  Theory  has 
fallen  from  its  high  estate;  the  Romanists  are  deserting  it^;  it 
is  yielding  before  the  influence  of  laws  similar  to,  though  less 

^  Bracton,  f,  171  b.  2  Calvin^ s  Case,  7  Rep.  11  b. 

^  Windscheid,  Pandekten,  §  60;  Dernburg,  Pandekten,  §  63;  Regelsberger,  Pan- 
dekten,  §  78.    See  also  Mestre,  Les  Personnes  Morales,  197  ff. 


xxxviii    Political  Theories  of  the  Middle  Age. 


splendidly  courageous  than,  our  Act  of  1862,  that  *  Magna  Carta 
of  co-operative  enterprise^'  which  placed  corporate  form  and  legal 
personality  within  easy  reach  of  '  any  seven  or  more  persons 
associated  for  any  lawful  purpose.'  It  has  become  difficult  to 
maintain  that  the  State  makes  corporations  in  any  other  sense 
than  that  in  which  the  State  makes  marriages  when  it  declares 
that  people  who  want  to  marry  can  do  so  by  going,  and  cannot 
do  so  without  going,  to  church  or  registry.  The  age  of  corporations 
created  by  way  of  '  privilege '  is  passing  away.  The  constitutions 
of  some  American  States  prohibit  the  legislatures  from  calling 
corporations  into  being  except  by  means  of  general  laws^,  and 
among  ourselves  the  name  '  Chartered '  has  now-a-days  a  highly 
specific  sense.  What  is  more,  many  foreign  lawyers  are  coming  to 
the  conclusion  that  in  these  days  of  free  association,  if  a  group 
behaves  as  a  corporation,  the  courts  are  well-nigh  compelled  to 
treat  it  as  such,  at  least  in  retrospect.  It  has  purposely,  let  us 
say,  or  negligently  omitted  the  act  of  registration  by  which  it 
would  have  obtained  an  unquestionable  legal  personality.  Mean- 
while it  has  been  doing  business  in  the  guise  of  a  corporation, 
and  others  have  done  business  with  it  under  the  belief  that  it 
was  what  it  seemed  to  be.  It  is  strongly  urged  that  in  such  cases 
injustice  will  be  done  unless  corporateness  is  treated  as  matter  of 
fact,  and  American  courts  have  made  large  strides  in  this  direction  I 
It  seems  seriously  questionable  whether  a  permanently  organized 
group,  for  example  a  trade  union,  which  has  property  held  for  it  by 
trustees,  should  be  suffered  to  escape  liability  for  what  would 
generally  be  called  '  its '  unlawful  acts  and  commands  by  the 
technical  plea  that  '  it '  has  no  existence  '  in  the  eye  of  the  law*.' 
Spectacles  are  to  be  had  in  Germany  which,  so  it  is  said,  enable 
the  law  to  see  personality  wherever  there  is  bodiliness,  and  a  time 
seems  at  hand  when  the  idea  of  '  particular  creation  '  will  be  as 
antiquated  in  Corporation  Law  as  it  is  in  Zoology.  Whether  we 
like  it  or  no,  the  Concession  Theory  has  notice  to  quit,  and  may 
carry  the  whol  e  Fiction  Theory  with  it. 

^  Palmer,  Company  Law,  p.  i. 

^  Morawetz,  Private  Corporations,  §  9  ff.;  Dillon,  Municipal  Corporations,  §  45. 

3  For  the  treatment  of  these  *  de  facto  corporations '  see  Taylor,  Private  Corporations, 
§  145  ff.  ;  Morawetz,  §  735  ff. 

^  This  was  written  some  months  before  Mr  Justice  Farvvell  issued  an  injunction  against 
a  Trade  Union  {Times,  6  Sept.  1900).    Of  this  matter  we  are  likely  to  hear  more. 


Translator  s  Introduction. 


XXXIX 


The  delicts,  or  torts  and  crimes,  of  corporations  have  naturally- 
been  one  burning  point  of  the  prolonged  debate.  To  serious  minds 
there  is  something  repulsive  in  the  attribution  of  fraud  or  the 
like  to  the  mindless  persotta  ficia.  The  law  would  set  a  bad 
example  if  its  fictions  were  fraudulent.  But  despite  some  fairly 
clear  words  in  the  Digest,  and  despite  the  high  authority  of  the 
great  Innocentius,  the  practice  of  holding  communities  liable  for 
delict  was,  so  Dr  Gierke  says,  far  too  deeply  rooted  in  the  Ger- 
manic world  to  be  eradicated.  Even  Savigny  could  not  per- 
manently prevail  when  the  day  of  railway  collisions  had  come. 
And  so  in  England  we  may  see  the  speculative  doubt  obtruding 
itself  from  time  to  time,  but  only  to  be  smothered  under  the 
weight  of  accumulating  precedents,  while  out  in  America  the  old 
sword  of  Quo  warranto^  forged  for  the  recovery  of  royal  rights 
from  feudal  barons,  is  descending  upon  the  heads  of  joint-stock 
companies  with  monopolizing  tendencies.  When  an  American 
judge  wields  that  sword  and  dissolves  a  corporation,  he  is 
performing  no  such  act  of  discretionary  administration  as 
Savigny  would  have  permitted  ;  he  uses  the  language  of  penal 
justice ;  he  may  even  say  that  he  passes  sentence  of  death,  and 
will  expend  moral  indignation  on  the  culprit  that  stands  before 
him\ 

It  is  worthy  of  remark,  however,  that  in  this  region  Englishmen 
have  been  able  to  slur  a  question  which  elsewhere  assumes  great 
importance  :  namely,  whether  a  corporation  'itself  can  do  unlawful, 
or  indeed  any  acts.  We  have  been  helped  over  a  difficulty  by 
the  extremely  wide  rule  of  employers'  liability  which  prevails 
among  us  and  towards  which  some  of  our  neighbours  have  cast 
wistful  eyes.  A  servant  of  Styles  acting  within  the  scope  of 
his  employment  does  a  wrong ;  we  hold  Styles  liable.  We  sub- 
stitute a  corporation  for  Styles,  and  then  this  corporation  is  liable. 
This  being  so,  we  can  say  that  'of  course'  the  corporation  would 
be  liable  if  the  wrongful  act  were  done  or  commanded  by  its 
directorate  or  by  its  members  in  general  meeting.  It  matters 
little  whether  we  affirm  or  deny  that  in  this  case  the  act  would 
be  that  of  the  corporation  '  itself,'  for  if  it  were  not  this,  it  could 
still  be  represented  as  the  act  of  an  agent  or  servant  done  within 

1  For  example  see  the  solemn  words  of  Finch,  J.  in  People  v.  North  River  Su<^ar 
Refining  Co.,  1890  ;  Jer.  Smith,  Select  Cases  on  Private  Corporations,  II.  944. 


xi       Political  Theories  of  the  Middle  Age. 


the  scope  of  his  employment.  Whether  that  picture  of  the 
assembled  members  or  directors  as  agents  or  servants  of  an  Un- 
knowable Somewhat,  which  cannot  have  appointed  or  selected 
them,  is  a  life-like  picture  we  need  hardly  ask:  the  conclusion  is 
foregone.  Such  is  our  happy  state.  But  where  Roman  law  has 
been  received  the  primary  rule  is  that  a  master  has  not  to  answer 
for  acts  that  he  has  not  commanded,  at  all  events  if  he  has  shewn 
no  negligence  in  his  choice  of  a  servant.  If  then  the  directorate 
of  a  company  has  done  wrong,  for  example  has  published  a  libel, 
much  may  depend  on  the  manner  in  which  the  case  is  envisaged. 
If  we  say  that  the  corporation  itself  has  acted  by  its  organs,  as 
a  man  acts  by  brain  and  hand,  then  the  corporation  is  liable  ;  but 
the  result  may  be  very  different  if  we  reduce  the  directors  to  the 
level  of  servants  or  agents.  Those  therefore  who  have  been 
striving  for  the  'organic  idea'  have  not  been  fighting  for  a  mere 
phrase  ;  and  now  the  term  '  Organ  '  stands  in  the  Civil  Code  of 
Germany.    That  is  no  small  triumph  of  Realism^ 

That  the  theory  of  the  Group  Person  and  the  Group  Will  has  a 
long  struggle  before  it  if  it  is  ever  to  dominate  the  jurisprudence  of 
the  world  would  be  admitted  even  by  its  champions.  We  have 
just  been  touching  the  confines  of  a  region  in  which  lies  the 
stronghold  of  an  opposing  force.  That  ancient  saying — its  sub- 
stance is  as  old  as  Johannes  Andreae — which  bids  the  body  politic 
fear  no  pains  in  another  world  represents  profound  beliefs.  Not- 
withstanding all  that  we  may  say  of  '  national  sins '  and  '  the 
national  conscience '  and  the  like,  a  tacit  inference  is  drawn  from 
immunity  (real  or  supposed)  to  impeccability,  and,  until  they  are 
convinced  that  corporations  and  States  can  sin,  many  people  will 
refuse  to  admit  that  a  corporation  or  State  is  a  thoroughly  real 
person  with  a  real  will.  We  cannot  wait  for  eschatology  to  say  its 
last  word,  but  even  in  quarters  where  jurisprudence  is  more  at  its 
ease  there  are  many  contestable  points  of  which  we  must  not 
speak.  However,  the  general  character  of  the  debate  is  worthy  of 
observation.  The  Realist's  cause  would  be  described  by  those  who 
are  forwarding  it  as  an  endeavour  to  give  scientific  precision  and 
legal  operation  to  thoughts  w^hich  are  in  all  modern  minds  and 
which  are  always  displaying  themselves  especially  in  the  political 

'  Blirgerliches  Gesetzbuch,  §  32.  The  term  has  for  some  time  past  been  used 
in  German  laws  and  by  German  courts.    Gierke,  Genossenschaftstheorie,  p.  614. 


Translator  s  Introduction. 


xli 


field.  We  might  be  told  to  read  the  leading  article  in  to-day's 
paper  and  observe  the  ideas  with  which  the  writer  '  operates ' :  the 
will  of  the  nation,  the  mind  of  the  legislature,  the  settled  policy  of 
one  State,  the  ambitious  designs  of  another :  the  praise  and  blame 
that  are  awarded  to  group-units  of  all  sorts  and  kinds.  We  might 
be  asked  to  count  the  lines  that  our  journalist  can  write  without 
talking  of  organization.  We  might  be  asked  to  look  at  our  age's 
criticism  of  the  political  theories  and  political  projects  of  its 
immediate  predecessor  and  to  weigh  those  charges  of  abstract  in- 
dividualism, atomism  and  macadamization  that  are  currently  made. 
We  might  be  asked  whether  the  British  Empire  has  not  yet 
revolted  against  a  Sovereign  that  was  merely  Many  (a  Sovereign 
Number  as  Austin  said)  and  in  no  sense  really  One,  and  whether 
'the  People'  that  sues  and  prosecutes  in  American  courts  is  a 
collective  name  for  some  living  men  and  a  name  whose  meaning 
changes  at  every  minute.  We  might  be  referred  to  modern 
philosophers  :  to  the  social  tissue  of  one  and  the  general  will, 
which  is  the  real  will,  of  another.  Then  perhaps  we  might  fairly 
be  charged  with  entertaining  a  deep  suspicion  that  all  this  is 
metaphor :  apt  perhaps  and  useful,  but  essentially  like  the  personi- 
fication of  the  ocean  and  the  ship,  the  storm  and  the  stormy  petrel. 
But  we,  the  Realist  would  say,  mean  business  with  our  Group 
Person,  and  severe  legal  logic.  We  take  him  into  the  law  courts 
and  markets  and  say  that  he  stands  the  wear  and  tear  of  forensic 
and  commercial  life.  If  we  see  him  as  the  State  in  an  exalted 
sphere  where  his  form  might  be  mistaken  for  a  cloud  of  rhetoric  or 
mysticism,  we  see  him  also  in  humble  quarters,  and  there  we  can 
apprehend  and  examine  and  even  vivisect  him.  For  example,  we 
are  obliged  to  ask  precise  questions  concerning  the  inferior  limit  of 
group-life.  Where  does  it  disappear?  That  is  no  easy  question, 
for  the  German  Partnership  goes  near  to  disengaging  a  group-will 
from  the  several  wills  of  the  several  partners ;  but  on  the  whole  we 
hold,  and  can  give  detailed  reasons  for  holding,  that  in  this  quarter 
the  line  falls  between  our  partnership  and  our  joint-stock  company. 

By  those  who  have  neither  leisure  nor  inclination  to  understand 
competing  theories  of  German  partnerships,  German  companies 
and  German  communes,  it  may  none  the  less  be  allowed  that 
theories  of  the  State  and  theories  of  the  Corporation  must  be 
closely  connected.    The  individualism  which  dissolves  the  com- 


xlii      Political  Theories  of  the  Middle  Age, 


pany  into  its  component  shareholders  is  not  Hkely  to  stop  at  that 
exploit,  and  the  State's  possession  of  a  real  will  is  insecure  if  no 
other  groups  may  have  wills  of  their  own.  Hence  the  value  of  a 
theory  which  at  all  events  endeavours  to  cover  the  whole  ground. 
To  say  more  would  be  to  say  much  more ;  and  enough,  it  is  hoped, 
has  been  said  to  enable  a  reader  of  the  following  pages  to  under- 
stand the  place  that  they  hold  in  an  historical  and  doctrinal 
exposition  of  '  German  Fellowship  Right.'  We  have,  it  must  be 
supposed,  made  a  brief  survey  of  the  history  from  first  to  last  of 
German  groups  ;  then  we  have  turned  back  to  explore  the  thoughts 
that  were  implicit  in  the  Group  Law  of  medieval  Germany ;  then, 
having  reached  the  eve  of  the  Reception,  we  have  investigated  the 
genesis  and  adventures  of  that  learned  theory  of  Corporations 
which  is  about  to  cross  the  Alps  ;  we  have  been  among  Greek 
philosophers,  Roman  lawyers.  Christian  fathers,  and  have  spent  a 
long  time  in  Italy  with  the  canonists  and  legists.  We  are  now  on 
the  point  of  returning  to  the  Germany  of  the  sixteenth  century  to 
watch  the  Reception  of  this  theory  and  the  good  and  ill  that 
follow,  when  Dr  Gierke  interpolates  the  following  brief,  but  surely 
valuable,  account  of  the  political  (or  rather  '  publicistic ')  theories 
of  the  Middle  Age :  theories  which,  as  he  remarks,  have  numerous 
points  of  contact  with  the  main  theme  of  his  book. 

The  reader  need  not  fear  that  he  will  here  encounter  much  that 
he  could  call  technical  jurisprudence.  Indeed  so  much  as  has  been 
said  in  this  Introduction  touching  Corporation  Law  and  German 
Fellowships  has  been  intended  to  explain  rather  the  context  than 
the  text  of  an  excerpted  chapter.  It  will  be  seen,  however,  that 
while  Dr  Gierke  is  careful  of  those  matters  to  which  any  historian 
of  political  theory  would  attend — for  instance,  the  growth  of 
definitely  monarchical  and  definitely  democratic  doctrines — an 
acute  accent,  which  some  English  readers  might  not  have  an- 
ticipated, falls  upon  the  manner  in  which  States,  rulers  and  peoples 
were  conceived  or  pictured  when  theorists  made  them  the  'subjects' 
of  powers,  rights  and  duties.  The  failure  of  medieval  theorists  to 
grasp  the  personality  of  the  State  appears  as  a  central  defect 
whence  in  later  times  evil  consequences  are  likely  to  issue.  It  will 
be  seen  that  the  stream  of  political  theory  when  it  debouches  from 
the  defile  of  the  Middle  Age  into  the  sun-lit  plain  is  flowing  in  a 
direction  which,  albeit  destined  and  explicable,  is  not  regarded  by 


Translator  s  Introduction. 


xliii 


our  author  as  ultimate.  However  much  the  river  may  be  gaining 
in  strength  and  depth  and  lucidity  as  it  sweeps  onwards  towards 
the  Leviathan  and  the  Contrat  Social,  its  fated  course  runs  for 
some  centuries  away  from  organization  and  towards  mechanical 
construction,  away  from  biology  and  towards  dynamics,  away  from  \ 
corporateness  and  towards  contractual  obligation,  away  (it  may  be 
added)  from  Germanic  lands  and  towards  the  Eternal  City.  It 
will  be  gathered  also  that  the  set  of  thoughts  about  Law  and 
Sovereignty  into  which  Englishmen  were  lectured  by  John  Austin 
appears  to  Dr  Gierke  as  a  past  stage.  For  him  Sovereignty  is  an 
attribute,  not  of  some  part  of  the  State,  but  of  the  Gesammtperson^ 
the  whole  organized  community.  For  him  it  is  as  impossible  to 
make  the  State  logically  prior  to  Law  {Recht)  as  to  make  Law 
logically  prior  to  the  State,  since  each  exists  in,  for  and  by  the 
other.  Of  these  doctrines  nothing  must  here  be  said,  only  let  us 
remember  that  if  the  Rechtsstaatsidee,  much  discussed  in  Germany, 
seems  to  us  unfamiliar  and  obscure,  that  may  be  because  we  have 
no  practical  experience  of  a  Polizeistaat  or  Beaintenstaat.  Some 
friendly  critics  would  say  that  in  the  past  we  could  afford  to  accept 
speciously  logical  but  brittle  theories  because  we  knew  that  they 
would  never  be  subjected  to  serious  strains.  Some  would  warn  us 
that  in  the  future  the  less  we  say  about  a  supralegal,  suprajural 
plenitude  of  power  concentrated  in  a  single  point  at  Westminster — 
concentrated  in  one  single  organ  of  an  increasingly  complex 
commonwealth — the  better  for  that  commonwealth  may  be  the 
days  that  are  coming. 

in. 

The  task  of  translating  into  English  the  work  of  a  German 
lawyer  can  never  be  perfectly  straightforward.  To  take  the  most 
obvious  instance,  his  Recht  is  never  quite  our  Right  or  quite  our 
Law.  I  have  tried  to  avoid  terms  which  are  not  current  in 
England.  For  this  reason  I  have  often  written  political  when  I 
would  gladly  have  written  publicistic.  On  the  other  hand  I  could 
not  represent  our  author's  theory  without  using  the  term  Stcbject  in 
the  manner  in  which  it  is  used  by  German  jurists  and  publicists^ 
For  yiature-rightly  an  apology  may  be  due,  but  there  was  a  pressing 


^  See  above  p.  xx.,  note  i. 


xiiv     Political  Theories  of  the  Middle  Age. 


need  for  some  such  adjective.  A  doctrine  may  be  nattLrrechtlich, 
though  it  is  not  a  doctrine  of  Natural  Law  nor  even  a  doctrine 
about  Natural  Law,  and  a  long  periphrasis  would  probably  say 
more  or  less  than  Dr  Gierke  intendeds  It  will  be  seen  that  in  his 
historical  scheme  a  large  part  is  played  by  the  contrast  between 
genuinely  medieval  thought  and  '  antique-modern '  ideas  These 
are  ideas  which  proceeding  from  Classical  Antiquity  are  be- 
coming modern  in  their  transit  through  the  Middle  Ages,  but  not 
without  entering  into  combination  with  medieval  elements.  I 
could  call  them  by  no  other  name  than  that  which  Dr  Gierke  has 
given  to  them:  they  must  be  'antique-modern.'  I  would  not  if  I 
could  induce  the  reader  to  forget  that  he  has  before  him  the  work 
not  only  of  a  German  jurist  but  of  a  leader  among  Germanists. 

Some  of  the  treatises  to  which  Dr  Gierke  refers  in  his  notes 
have  been  re-edited  since  his  book  was  published  (1881).  The  main 
event  of  this  kind  is,  so  I  believe,  the  publication  in  the  Monu- 
menta  Germaniae  of  the  numerous  pamphlets  which  were  evoked 
by  the  struggle  over  the  Investitures  and  which  set  before  us  the 
papal  and  imperial  theories  of  Public  Law  in  the  first  stage  of  their 
formation-.  I  have  thought  it  best  to  repeat  Dr  Gierke's  references 
as  I  found  them  and  not  to  attempt  the  perilous  task  of  substituting 
others.  Among  the  new  materials  is  the  highly  interesting  and 
astonishingly  anti-papal  treatise  of  an  anonymous  canon  of  York, 
apparently  of  Norman  birth,  who  about  the  year  11 00  was  warmly 
taking  our  king's  side  in  the  dispute  about  Investitures  and  was 
writing  sentences  that  Marsiglio  and  Wyclif  would  not  have  dis- 
owned. But  of  him  we  may  read  in  Bohmer's  valuable  and  easily 
accessible  history  of  Church  and  State  in  England  and  Normandy^ 
A  few  notes  about  some  English  publicists  I  might  have  been 
tempted  to  add,  had  I  not  made  this  translation  in  a  land  where 

^  When,  for  example,  Dr  Brunner  (v.  Holtzendorff,  Encyklopadie,  ed.  5,  p.  347) 
mentioned  '  die  naturrechtlichen  Theorien  Benthams  und  Austins  liber  den  radikalen 
Beruf  des  Gesetzgebers '  he  was  not  accusing  Bentham  and  Austin  of  believing  in  what 
they  would  have  consented  to  call  Natural  Law.  Austin's  projected  science  of  General 
Jurisprudence  which  was  to  bring  to  light  'necessary'  principles  (p.  no8)  would 
apparently  have  been  very  like  a  system  of  Naturrecht. 

2  Libelli  de  lite  imperatorum  at  pontificum,  3  vols.,  1891 — 2 — 7.  See  Fisher,  The 
Medieval  Empire,  ii.  57. 

^  Bohmer,  Kirche  und  Staat  in  England  und  in  der  Normandie,  Leipzig,  1899, 
p.  177  ff. 


Translator  s  Introduction. 


xlv 


books  of  any  kind  are  very  rare.  Some  references  to  Richard  Fitz 
Ralph,  to  the  Song  of  Lewes,  to  Sir  John  Fortescue  and  the 
EngHsh  law-books  might  have  been  inserted.  But  the  works  of 
Mr  Poole^  Mr  Kingsford^  and  Mr  Plummer^  are  likely  to  be  in 
the  hands  of  every  English  student  of  medieval  politics;  to  John  of 
Salisbury  and  William  of  Ockham — who  belong  rather  to  the 
World-State  than  to  England — Dr  Gierke  seems  to  have  done 
ample  justice;  I  know  of  little,  if  anything,  that  would  tend  to 
impair  the  validity  of  his  generalizations^ ;  and  my  endeavour  has 
been  to  obtain  for  him  the  hearing  to  which  he  is  justly  entitled. 
I  hope  that  I  may  induce  some  students  of  medieval  and  modern 
history,  law  and  political  theory  to  make  themselves  acquainted 
with  his  books^ 

^  A  large  part  of  the  treatise  of  Fitz  Ralph  (Armachanus)  is  to  be  found  in  Mr  R.  L. 
Poole's  edition  of  Joh.  Wycliffe,  De  dominio  divino,  Wyclif  Society,  1890.  See  also 
Mr  Poole's  Illustrations  of  the  History  of  Medieval  Thought,  1884. 

2  Kingsford,  The  Song  of  Lewes,  1890. 

^  Plummer,  Fortescue's  Governance  of  England,  1885.  An  English  reader  will 
hardly  need  to  be  told  that  Dr  Creighton's  History  of  the  Papacy  will  introduce  him  to 
the  practical  aims  and  projects  of  some  of  the  medieval  publicists.  Mr  Jenks's  Law 
and  Politics  in  the  Middle  Ages  (1898)  will  also  deserve  his  attention. 

In  England  the  idea  of  a  World-State  which  is  governed  by  the  Emperor  appears 
chiefly  in  the  much  modified  form  of  a  notion  that  somehow  or  another  the  king  of 
England  either  is  an  Emperor  or  will  do  instead  of  an  Emperor.  Henry  1.  was 
Gloriosus  Caesar  Henricus :  Leg.  Hen.  Prim.  pref.  Bracton,  f.  5  b;  Bracton  and 
Azo  (Seld.  Soc),  p.  57.  Rishanger,  Chron.  et  Ann.  (Rolls  Ser.),  p.  255  :  Speech  of  the 
bishop  of  Byblos  :  dominus  Rex  hie  censetur  imperator.  Rot.  Pari.  iii.  343  :  Richard  II. 
is  '  entier  Emperour  de  son  Roialme.'  On  the  other  side  stands  that  strange  book  the 
Mirror  of  Justices  (Seld.  Soc),  pp.  xxxiv.,  195. 

^  Dr  Gierke's  notes  are  foot-notes.  I  thought  that  I  should  consult  the  tastes  of 
English  readers  by  placing  them  at  the  end  of  the  book.  The  marginal  catch-words  are 
mine,  but  the  summary  of  the  argument  is  Dr  Gierke's.  I  owe  my  thanks  for  many 
valuable  suggestions  to  Mr  J.  N.  Figgis  whose  essays  on  the  Divine  Right  of  Kings 
(1896)  and  on  Politics  at  the  Council  of  Constance  (Trans.  Roy.  Hist.  Soc.  N.  S.  xiii. 
103)  will  be  known  to  students.  Last  year,  being  sent  from  England,  I  was  encouraged 
to  undertake  this  translation  by  Professor  Henry  Sidgwick.  What  encouragement  was 
like  when  it  came  from  him  his  pupils  are  now  sorrowfully  remembering. 


ANALYTICAL  SUMMARY. 


I.    The  Evolution  of  Political  Theory. 

Development  of  a  Political  Theory  (p.  i).  It  becomes  a  Philosophy 
of  State  and  Law  (i).  Cooperation  of  the  various  Sciences  (i).  Unity 
and  generality  of  the  doctrine  beneath  all  controversies  (2).  Combination 
into  a  system  of  elements  wliich  came  from  various  quarters  (2).  The 
various  methods  mutually  complete  each  other  (3).  Theologico-philo- 
sophical  Speculation,  political  pamphleteering,  and  professional  Juris- 
prudence (3).  The  Medieval  Theory  of  State  and  Society  is  a  stream 
which  flows  in  a  single  bed  (3).  Relation  of  Medieval  to  Antique-Modern 
Thought  (3).  The  system  of  the  Medieval  Spirit  (4).  Reception  of  the 
antique  ideas  of  State  and  Law  (4).  Genesis  of  the  specifically  modern 
ideas  (4).  Growth  of  an  antique-modern  kernel  in  the  shell  of  the 
medieval  system  (4).  Stages  in  the  work  of  dissolution  and  reconstruc- 
tion (5).  Relation  of  Political  Theory  to  the  Romano-Canonical  Theory 
of  Corporations  (6). 

IL    Macrocosm  a7td  Microcosm. 

The  Pohtical  Thought  of  the  Middle  Age  starts  from  the  Whole  but 
attributes  intrinsic  value  to  every  partial  whole  down  to  the  individual  (7). 
Hence  its  theocratic  and  spiritualistic  traits  (7).  Idea  of  the  divinely- 
willed  Harmony  of  the  Universe  (7).  The  Universe  as  Macrocosm  and 
every  partial  whole  as  Microcosm  (8).  The  first  principles  of  the  Doctrine 
of  Human  Society  must  be  borrowed  from  the  idea  of  the  divinely- 
organized  Universe  (8). 

III.    Unity  i7i  Church  and  State. 

The  Principle  of  Unity  (9).  It  is  the  constitutive  principle  of  the 
Universe  (9).  Therefore  it  must  be  vaUd  in  every  Partial  Whole  (9). 
Unity  as  the  source  and  goal  of  Plurality  (9).  The  Ordinatio  ad  ununi 
an  all-pervading  principle  (9).  Application  thereof  to  Human  Society  (9). 
Wider  and  narrower  social  units  (10). 


xlviii    Political  Theories  of  the  Middle  Age. 


The  postulate  of  an  external  unity  of  All  Mankind  (lo).  Mankind 
as  a  mystical  body,  Ecclesia  uJtiversalis,  Respublica  generis  humani  {\o). 
The  divinely  appointed  severance  of  this  body  into  two  Orders  of  Life, 
the  Spiritual  and  the  Temporal  (lo).  Each  of  these  Orders  a  separate 
external  realm  (ii).  This  dualism  cannot  be  final,  but  must  find  recon- 
ciliation in  some  higher  unity  (ii). 

The  clerical  party  sees  the  solution  in  the  Sovereignty  of  the  Spiritual 
Power  (ii).  The  Principle  of  Unity  is  the  philosophic  foundation  of  the 
hierarchical  theory  which  is  developed  from  the  time  of  Gregory  VII. 
onward  (ii).  The  Church  is  the  true  Cosmopolis  (ii).  The  Pope  is 
its  earthly  Head  (12).  The  divinely  appointed  separation  of  the  two 
Powers  extends  only  to  their  use  (12).  The  Temporal  Power  possesses 
a  divine  sanction  and  mandate  only  through  the  mediation  of  the  Church 
(12).  Unholy  origin  of  the  State  (12).  It  needs  hallowing  by  ecclesi- 
astical authority  (13).  '  Institutio '  of  the  Realm  by  the  Priesthood  (13). 
The  Temporal  Order  remains  a  subservient  part  of  the  Ecclesiastical  Order 
and  a  means  for  ecclesiastical  ends  (13).  Leges  and  Canones  (13).  Duty 
of  obeying  the  Church  (13).  Worldly  Rulership  as  ecclesiastical  office  (13). 
Papal  claims  to  Overlordship  above  the  Emperor  and  other  independent 
wielders  of  worldly  power  (13).  The  Theory  of  the  Two  Swords  (13). 
The  Pope  has  utriimque  gladium  but  demises  the  use  of  the  Temporal 
Sword  (14).  Application  of  the  feudal  idea  (14).  The  Temporal  Sword 
to  be  wielded  in  the  service  and  at  the  instance  of  the  Church  (14).  The 
Pope's  right  of  supervision  by  virtue  of  the  Spiritual  Sword  (14).  Right 
and  duty  of  the  Pope  in  certain  cases  to  make  a  direct  use  of  the  Temporal 
Sword  (14).  Translatio  imperii  (14).  Institution  of  Emperors  and 
Kings  (14).  Guardianship  of  the  Realm  when  it  is  vacant  or  the  Ruler  is 
neglectful  (15).  Jurisdiction  over  Emperors  and  Kings,  Protection  of 
Peoples  against  Tyranny,  Deposition  of  Rulers  and  Liberation  of  Subjects 
(15).  All  these  claims  are  the  direct  outcome  of  ius  divinum  (15). 
Positive  Law  cannot  derogate  from  them  (15). 

The  champions  of  the  State  but  very  rarely  deduce  a  Sovereignty  of 
State  over  Church  from  the  Principle  of  Unity  (16).  Reminiscences  of 
an  older  condition  of  aftairs  (16).  Ockham  (16).  Marsilius  of  Padua(i6). 
In  general  the  doctrine  of  two  co-ordinate  Powers  each  with  a  divinely 
appointed  sphere  is  maintained  (16).  Battle  for  the  independence  of 
Temporal  Law  (16).  And  for  the  maxim  Imperium  immediate  a  Deo  (17). 
Particular  claims  of  the  Church  Party  resisted  (17).  Concession  of  an 
equal  Sovereignty  and  Independence  to  the  Spiritual  Sword  (17).  Superior 
rank  allowed  to  the  Church  (17).  Twofold  attempt  to  resolve  the  duality 
in  a  higher  unity  (17).    Christ's  invisible  Headship  a  sufficient  present- 


A iialytical  Summary. 


xlix 


ment  of  Unity  (17).  An  internal  Unity  of  the  two  Orders  of  Life 
resulting  from  their  intimate  connexion  and  mutual  support  (17).  Re- 
ciprocal completion  of  the  two  Powers  in  the  production  of  a  single 
Life  (17).  Curious  theory  of  a  law  of  necessity  permitting  one  of  the  two 
Powers  to  assume  functions  that  are  not  its  own  (18). 

The  Principle  of  Unity  within  Church  and  State  respectively  (18).  In 
the  Church  (18).  The  Church  as  a  single  visible  Polity  (19).  Reaction 
against  the  tendency  to  make  a  State  of  the  Church  (19).  Unity  in  the 
Temporal  Sphere  (19).  Necessity  and  divine  origin  of  the  World-State  (19). 
The  iinperhan  mundi  of  the  Romano-German  Emperor  (20).  Controversy 
as  to  possible  exemptions  from  the  Empire  (20).  UniversaUty  of  the 
Empire  denied  in  principle  (20). 

The  visible  Unity  postulated  in  Church  and  State  does  not  extend 
beyond  those  matters  which  lie  within  the  purpose  that  is  common  to 
All  Mankind  (20).  Organically  Articulated  Structure  of  Human  Society 
(21).  The  units  that  mediate  between  the  Community  of  Mankind  and 
the  Individual  (21).  Attempt  to  establish  general  schemes  of  these  inter- 
mediate units:  village,  city,  kingdom  etc.  (21).  Appearance  of  a 
centralizing  tendency  in  Church  and  State  which  is  opposed  to  this  federal- 
istic  system  (21). 


IV.    TJie  Idea  of  Organizatio7i. 

Comparison  of  Mankind  and  every  smaller  group  to  a  body  informed 
by  a  soul  (22).  Mankind  as  a  Corpus  Mysticum  (22).  Heads  of  this 
Body  (22).  Church  and  State  as  soul  and  body  (22).  Inferences  drawn 
from  this  picture  resisted  (23).  Nicholas  of  Cues  on  the  Body  of  Mankind 
(23).  The  ecclesiastical  or  temporal  group  as  a  Corpus  inysticuui  (24). 
The  Corpus  morale  et politiciim  of  Engelbert  of  Volkersdorf  (24). 

The  comparison  descending  to  particulars  (24).  Anthropomorphic 
conceits  of  John  of  Salisbury  (24).  Of  Aquinas  and  others  in  relation 
to  the  Church  (25).  Ptolemy  of  Lucca  (25).  Aegidius  Colonna  (25). 
Engelbert  of  Volkersdorf  (26).  Marsilius  of  Padua  (26).  Ockham  (27). 
Later  writers  (27).    Nicholas  of  Cues  (27). 

Derivation  of  other  ideas  from  the  fundamental  idea  of  the  Social 
Organism  (27).  Idea  of  Membership  (27).  Differentiation  and  grouping 
of  members  (28).  Idea  of  Mediate  Articulation  (28).  Idea  of  Organiza- 
tion (28).  Idea  of  Function  (28).  Idea  of  an  Organ  (28).  Idea  of  the 
governing  part  as  the  Living  Principle  (28).  Idea  of  the  natural  growth  of 
social  bodies  is  suppressed  by  the  idea  of  Creation  (29). 

M.  d 


1 


Political  Theories  of  the  Middle  Age. 


As  in  Antiquity,  so  in  the  Middle  Age,  the  idea  of  Organization  fails  to 
issue  in  the  legal  concept  of  the  Personality  of  the  unified  Whole  (29). 
Just  for  this  reason  it  can  conceal,  but  cannot  hinder,  the  progress  of 
the  atomistic  and  mechanical  mode  of  constructing  the  State  (30). 

V.     TJie  Idea  of  Monarchy. 

God  as  Monarch  of  the  Universe  and  therefore  of  the  spiritual  and 
temporal  Community  of  Mankind  (30).  As  an  Institution,  all  Rulership 
proceeds  from  God  (30).  But  from  Him  proceed  also  the  office  and 
mandate  of  every  particular  wielder  of  earthly  power  (31).  All  power 
immediately  or  mediately  demised  by  God  (31).  Since  every  Partial 
Whole  should  be  like  the  Universal  Whole,  a  monarchical  constitution  of 
Church  and  State  seems  self-evident  (31).  The  medieval  Publicist's 
preference  for  Monarchy  (31).  Divine  institution  of  Monarchy  in  the 
Church  (32).  Divine  institution  of  Monarchy  in  the  Empire  (32).  In 
every  smaller  body  Monarchy  is  normal  (32).  Dissolution  of  these 
thoughts  under  the  influence  of  Antiquity  (32).  Relative  rightfulness  of 
Republican  Constitutions  (32).  Attacks  on  the  divine  origin  of  Monarchy 
in  Church  and  State  (33).  Preference  for  Republics  among  the  Humanists 
(33).  Rejection  of  inferences  favourable  to  Monarchy  that  are  drawn 
from  the  Principle  of  Unity  (33). 

The  Doctrine  of  the  Monarch's  position  (33).  The  genuinely 
Medieval  Doctrine,  in  which  the  Germanic  idea  of  Lordship  lives  on  but 
is  deepened  by  Christianity,  sees  in  every  Lordship  an  Office  proceeding 
from  God  (33).  Exaltation  of  the  Ruler's  person  (33).  But  energetic 
development  of  the  official  character  of  Rulership  (34).  Reciprocal  Rights 
and  Duties  of  Ruler  and  Community  (34).  All  duty  of  obedience  con- 
ditioned by  the  rightfulness  of  the  command  (35).  The  Doctrine  of 
Active  Resistance  (35).  Development  of  the  idea  of  the  Ruler's 
Sovereignty  beside  that  of  the  Ruler's  Office  (35).  The  pletiitudo  potestatis 
of  the  Pope  (36).  Struggle  between  this  notion  and  that  of  potestas 
limitata  (36).  The  plenitudo  potestatis  of  the  Emperor  (36).  Opposition 
(36),    Starting  points  of  a  doctrine  limiting  monarchical  rights  (37). 

VI.    The  Idea  of  Popular  Sovereignty. 

The  medieval  notion  of  the  active  and  aboriginal  Rights  of  the 
Community  (37).  Conflict  over  the  quality  and  scope  of  these  Rights  (37). 
Original  influence  of  the  Germanic  idea  of  Fellowship  (37).  Transmuta- 
tion under  the  influence  of  antique  elements  (37).    Issue  in  the  direction 


Analytical  Summary. 


li 


of  Popular  Sovereignty  (38).  Combinations  of  People's  Sovereignty  with 
Ruler's  Sovereignty  (38). 

I.  In  the  Temporal  Sphere:  Rights  of  the  Community  (38).  The 
People's  Will  the  source  of  Lordship  (38).  Doctrine  of  the  State  of 
Nature  (38).  Appeal  to  the  Corpus  luris  Civilis  to  prove  that  the  highest 
earthly  power  proceeds  from  the  Will  of  the  People  (39).  Legal  origin 
of  all  subjection  in  the  voluntary  and  contractual  submission  of  the  Com- 
munity (39).  Escheat  of  the  Imperium  to  the  People  (40).  Claims  of 
the  Roman  townsfolk  (41).  Rejection  of  those  claims  by  Leopold  of 
Bebenburg  (41).  Cooperation  of  the  People  in  the  transfer  of  the  Empire 
from  the  Greeks  to  the  Germans  (41).  Guardianship  of  the  vacant  Empire 
(42).  Right  of  the  People  to  choose  its  Head  (42).  The  pure  Elective 
Principle  preferable  to  the  institution  of  Hereditary  Dignities  (42).  Legal 
foundation  and  legal  nature  of  the  electoral  rights  of  the  Prince 
Electors  (42). 

Rights  of  the  Community  as  against  a  legitimately  instituted  Ruler  (43). 
Controversy  among  the  Glossators  as  to  the  significance  of  the  translatio 
imperii  by  the  populus  to  the  princeps  (43).  Theory  of  an  out-and-out 
conveyance  (43).  Theory  of  a  mere  concessio  (43).  Extension  of  this 
controversy  to  the  general  case  of  Prince  and  People  (43). 

The  champions  of  Ruler's  Sovereignty  (43).  Derivation  of  Absolute 
Monarchy  from  an  Abdication  of  the  Community  (43).  But  even  on  this 
side  a  continuing  right  of  the  People  as  against  the  Ruler  is  conceded  (44). 
Contractual  relationship  between  Ruler  and  People  (44),  A  right  of 
active  participation  in  the  Hfe  of  the  State  conceded  to  the  People  (44). 
Acts  prejudicial  to  the  Community's  Rights  require  the  consent  of  the 
Community  (44).  Cooperation  of  the  People  in  Legislation  and  Govern- 
ment (44).    Deposition  of  the  Ruler  in  a  case  of  necessity  (45). 

The  champions  of  an  intermediate  theory  (45).  Limited  Monarchy  (45). 
The  Mixed  Constitution  (45). 

The  champions  of  the  People's  Sovereignty  (45).  They  also  maintain 
a  contractual  relationship  between  People  and  Ruler  and  so  concede  an 
independent  right  of  ruling  to  the  Ruler  (45).  But  they  declare  the 
People  to  be  the  true  Sovereign:  'populus  maior  principe '  (45).  Conse- 
quences touching  Legislative  Power  (45).  Deposition  and  punishment  of 
the  Ruler  who  neglects  his  duties  (46).  Popular  Sovereignty  in  Leopold 
of  Bebenburg  (46).  The  system  of  MarsiHus  of  Padua  (46).  The  system 
of  Nicholas  of  Cues  (47).    Similar  doctrines  in  cent.  xv.  (48). 

2.  Development  of  analogous  thoughts  about  the  Church  and  their 
significance  in  political  theory  (49).  Survival  of  the  idea  of  a  right  of 
the  ecclesiastical  Community  even  within  the  Doctrine  of  an  Absolute 

d2 


Hi       Political  Theories  of  the  Middle  Age. 


papal  Monarchy  (49).  Superiority  of  Council  over  Pope  in  matters  of 
faith  (50).  Extension  of  this  Superiority  to  other  matters  (50).  Bolder 
doctrines  after  the  beginning  of  cent.  xiv.  (51).  Transfer  to  the  eccle- 
siastical sphere  of  the  idea  of  Popular  Sovereignty  (51).  John  of  Paris  (51). 
Marsilius  (51).  Ockham  (52).  The  writers  of  the  Conciliar  Age  (52). 
The  system  of  Conciliar  Sovereignty  in  d'Ailly,  Gerson,  Zabarella,  Andreas 
Randuf,  Dietrich  of  Niem  and  their  contemporaries  (52).  The  'Subject' 
of  Ecclesiastical  Power  (52).  Rights  of  the  Council  over  the  Pope  (53). 
Idea  of  the  Mixed  Constitution  in  the  Church  (53).  Its  relation  to  the 
idea  of  Monarchy  in  the  Church  (54).  Nicholas  of  Cues  and  the  principle 
of  the  Sovereignty  of  the  Community  (54).  Gregory  of  Heimburg  (57). 
The  Canonists  (57).  Antonius  Rosellus  (57).  Beginning  of  the  scientific 
reaction  in  favour  of  the  Papacy  with  a  general  negation  of  Popular 
Sovereignty  (57).    Torquemada  (57). 

The  Conciliar  Movement  does  not  call  in  question  the  exclusive  right 
of  the  Clergy  in  the  Church  (57).  At  the  most  it  admits  a  subordinate 
participation  on  the  part  of  the  Temporal  Magistrate  (57).  Even  when 
the  Church  is  regarded  as  a  Fellowship  of  the  Faithful  this  does  not 
concede  active  rights  to  the  Laity  (58).  Still  even  in  the  Middle  Age 
there  are  precursors  of  the  Reformers'  ideas  of  the  Universal  Priesthood 
and  of  the  rights  of  the  Christian  commune  (58).  But  even  the  medieval 
theories  of  this  tendency  are  apt  to  issue  in  an  introduction  of  the 
Temporal  Magistrate  into  the  Church  (58).  Marsilius  on  the  rights  of  the 
Laity  (58).    Ockham  on  the  rights  of  the  Laity  (59). 

VII.    TJie  Idea  of  Representation, 

The  representative  character  of  the  Monarch  (61).  Pope  and 
Church  (62).  Kaiser  and  Reich  (62).  Perception  and  theoretical  formu- 
lation of  the  contrast  between  the  private  and  public  capacities  of  the 
Monarch,  between  his  private  property  and  State  property,  between  acts 
of  the  Man  and  acts  of  the  Ruler  (63).  Relation  of  the  People  as  a  whole 
to  the  Body  of  the  People  (63).  Rights  of  the  People  to  be  exercised 
by  the  People  collectively,  not  distributively  (63).  Requirement  of  a  con- 
stitutional Assembly  (63).  Application  of  the  Doctrine  of  Corporate 
Resolutions  (64).  To  the  Council  (64).  To  Temporal  Assemblies  (64). 
Extension  to  Nations  of  the  Doctrine  of  Corporate  Delict  (64).  Exercise 
of  the  Rights  of  the  People  by  Representative  Assemblies  (64).  Repre- 
sentative functions  of  the  Council  (64).  Their  scope  (65).  Their 
foundation  in  Election  (66).  Representation  of  the  People  in  the 
State  (66).    Parliamentary  system  of  Nicliolas  of  Cues  (66).  Marsilius 


/ 


Analytical  Swrnnary. 


liii 


reserves  the  exercise  of  true  rights  of  Sovereignty  for  a  primary  Assembly 
(66).  Limited  representative  functions  of  collegiate  bodies  (66).  Leopold 
of  Bebenburg  on  the  Prince  Electors  (66).  The  Cardinals  (66).  Be- 
ginnings of  the  doctrine  that  the  Representatives  of  the  People  act  repre- 
sentatively when,  and  only  when,  they  act  as  a  Corporate  Whole  (67). 

VI IL     The  Idea  of  Personality. 

Personality  of  Church  and  State  (67).  The  idea  does  not  receive  at 
the  hands  of  the  Publicists  the  development  that  might  have  been  ex- 
pected (68).  The  professional  Jurists  work  with  this  idea,  but  employ 
only  a  'fictitious'  personality  developed  within  the  province  of  Private 
Law  (68).  Hence  a  tendency  which  increasingly  prevails  until  our  own 
day  (68).  Church  and  State  as  juristic  persons  for  the  Jurists  (69). 
Baldus  on  the  State's  Personality  (69).  No  application  of  the  notion  of 
Personality  by  the  PubHcists  when  they  discuss  the  'Subject'  in  which 
State-Power  resides  (70).  Disruption  of  the  State-Person  into  two 
'  Subjects  '  embodied  respectively  in  Ruler  and  People  (70).  The  Ruler's 
Personahty  (71).  The  Community  as  a  *  Subject '  of  rights  and  duties  (71). 
The  concept  of  the  People  tends  to  take  the  '  individual-collective ' 
shape  (72).  In  the  Church  (72).  In  the  State  (72).  Influence  of  this 
on  the  theory  of  Representation  (72).  Germs  of  the  later  theories  of 
Natural  Right  (73). 

IX.    The  Relation  of  the  State  to  Lazv. 

The  ancient  Germanic  conception  of  a  Reign  of  Law  yields  before  the 
influence  of  Antiquity  (73).  The  Idea  of  the  State  becomes  independent 
of  the  Idea  of  Law  (73).  Howbeit,  genuinely  Medieval  Thought  holds 
fast  the  independence  of  the  Idea  of  Law  (74).  Solution  of  the  problem 
by  a  distinction  between  Positive  and  Natural  Law  (74). 

The  Medieval  Doctrine  of  Natural  Law  (74).  The  lex  naturalis  before 
and  above  all  earthly  power  (75).  The  ius  naturale  strictly  so  called  (75). 
The  ius  divinuin  (75).  The  ius  gentium  (76).  Limitation  of  the 
principle  (76). 

The  Medieval  Doctrine  of  Positive  Law  (76).  The  ius  civile  as 
product,  instrument  and  sphere  of  human  power  (77).  Exaltation  of  the 
Ruler  above  the  Law  (77).  Resistance  to  this  on  the  part  of  the  advocates 
of  the  People's  Sovereignty  (78).  But  they  contend  for  a  Popular  Assembly 
which  is  similarly  before  and  above  all  Positive  Law  (78). 

Application  of  these  principles  to  the  Rights  given  respectively  by  the 


liv      Political  Theories  of  the  Middle  Age. 


two  kinds  of  Law  (78).  Rights  derived  from  Positive  Law  are  subjected 
to  the  free  disposal  of  the  Sovereign  (79).  The  conflict  between  Martinus 
and  Bulgarus  (79).  The  Right  of  Expropriation  as  a  right  of  Sovereignty 
(79).  Establishment  of  limitations  to  this  Right  (79).  Requirement  of 
itista  causa  (80).  Compensation  for  the  expropriated  (80).  Acquired 
Rights  protected  only  in  so  far  as  they  are  grounded  on  Natural  Law  (80). 
The  scheme  of  Property  Law  proceeds  from  the  ius  gentium  (80).  The 
binding  force  of  Contracts  derived  from  the  ms  naturae  (80).  A  ius 
mere  positivuni  is  not  protected  against  the  Sovereign  (81).  Revocation 
of  privileges  (81). 

Absolute  validity  of  Rights  and  Duties  which  flow  immediately  from 
the  Law  of  Nature  (81).  They  need  no  'title'  and  cannot  be  displaced 
by  any  'title'  (81).  Innate  and  indestructible  Rights  of  the  Individual  (81). 
Original  and  essential  Rights  of  Superiority  residing  in  the  Whole  Com- 
munity (82).  Development  of  a  Doctrine  of  a  State-Power  one  and 
indivisible  involved  in  the  very  idea  of  the  State  (82).  Completion  of 
the  idea  of  Sovereignty  (83).  InaHenable  Rights  of  the  Crown  (83). 
Inalienable  Rights  of  the  People  (83).  Distinction  between  Rights  of 
Sovereignty  and  Fiscal  Rights  (83).  Sharp  severance  of  Public  and 
Private  Right  {83). 

Medieval  Doctrine  as  to  the  effect  of  Acts  of  State  which  transcend 
the  limits  of  State-Power  (84).  Genuinely  medieval  doctrine  holds  such 
acts  to  be  formally  null  and  void  (84).  Consequences  (84).  A  modern 
tendency  appears  which  will  make  the  Sovereign  formally  omnipotent  in 
the  sphere  of  Law  (84).  Consequences  (85).  Still  there  is  life  in  the 
notion  that  the  limits  set  to  State-Power  by  Natural  Law  are  truly  legal 
limits  (85).  Consequences  (85).  Beginnings  of  a  contrary  doctrine  (86). 
Machiavelli  (86).    Politics  and  Natural  Law  in  later  times  (86). 

X.    TJie  Beginnings  of  the  Modern  State. 

The  modern  elements  in  medieval  doctrine  (87).  Preparation  for  the 
'  nature-rightly '  construction  of  Society  (87).  Absolutism  and  Indi- 
vidualism (87). 

Theories  touching  the  Origin  and  Legal  Foundation  of  the  State  (88). 
Transition  from  the  State  of  Nature  to  Civil  Society  (88).  The  Contract 
of  Subjection  (88).  How  arises  that  Society  which  erects  a  State?  (88). 
The  Theory  of  a  Social  Contract  (89).  The  aim  and  object  of  the 
State  (90).  Its  rights  are  measured  by  its  aim  and  object  (91).  Demand 
that  Public  Law  be  brought  into  accord  with  the  Principles  of  Reason  (92). 
The  cry  for  Reformation  (92). 


A  Italy  tical  Sttnimary. 


Iv 


The  fundamental  notions  of  Public  Law  (92).  The  Idea  of 
Sovereignty  (93).  Formulation  thereof  in  the  Middle  Age  (93).  But 
not  then  exalted  to  its  modern  height  (93).  Still  it  necessarily  induces 
a  concentration  of  all  State  Power  at  a  single  point  (94).  The  concen- 
trated State  Power  begins  to  claim  an  equal  and  equally  immediate 
control  over  all  individuals  (94).  Tendency  towards  a  dissolution  of  all 
intermediate  Communities  (94).  Development  of  the  notion  of  the  State 
as  The  (exclusive)  Community  (94). 

Reservation  of  equal  or  superior  rights  of  the  Church  (94).  But 
already  Medieval  Theory  is  preparing  an  absorption  of  Church  in 
State  (94).  The  Church  is  pure  State  Institution  for  Marsilius  of 
Padua  (95).  Particular  consequences  of  the  same  principle  drawn  by 
other  writers  (95). 

The  Medieval  Idea  of  the  Empire  shattered  by  the  Modern  Idea  of  the 
State  (95).  Reception  of  the  Aristotelian  definition  of  the  State  (96). 
Inconsequence  of  Philosophers  who  adopt  it  (96).  Inconsequence  of 
Jurists  (96).  Gradual  emergence  in  philosophic  doctrine  of  the  State's 
exclusive  character  (97).  Aid  derived  from  the  legist's  concept  of  an 
universitas  superior  em  non  recogtioscens  (97).  External  Sovereignty  becomes 
the  characteristic  mark  of  the  State  (97).  Above  there  is  no  room  for 
a  World-State  and  below  there  are  only  communes  and  corporations  (97). 

The  concentration  of  all  State  Life  at  a  single  point  did  not  necessarily 
imply  a  concentration  at  that  point  of  all  Communal  Life  (97).  Idea 
of  the  Organic  Articulation  of  Communities  within  the  State  (98).  Still 
on  the  whole,  even  in  the  Middle  Age,  the  prevailing  tendency  of  Theory 
is  towards  such  an  exaltation  of  the  State's  Sovereignty  as  would  make  the 
State  the  only  representative  of  Communal  Life  (98).  In  this  direction 
Philosophy  precedes  Jurisprudence  with  giant  strides  (98).  Theoretic 
dissolution  of  the  independent  lordship-rights  of  Germanic  origin  (99). 
Treatment  by  Philosophy  of  Germanic  fellowship-rights  (99).  Natural  Law 
outlaws  the  Corporation  (100). 


SUBJECT  MATTER  OF  THE  NOTES'. 


NOTE  PAGE 

1  Importance  of  the  Jurists  ...  loi 

2  Macrocosm  and  Microcosm  loi 

3  Unity  as  Source  and  Goal . .  loi 

4  Partial  Wholes    102 

5  The  Praises  of  Unity   102 

6  The  Purpose  of  Corporate 

Mankind    103 

7  The  Universal  Church  and 

the     Commonwealth  of 
Mankind    103 

8  Priesthood  and  Realm    104 

9  Temporal  Power  of  the  Pope 

and  the  Principle  of  Unity  104 
10    Absorption    of    State  in 

Church   105 

J I    Insufficiency  of  an  Invisible 

Unity   106 

12  Temporal  Sovereignty  of  the 

Pope   106 

13  Direct  Power  of  the  Pope  in 

Temporalities    107 

14  Inferiority     of  Temporal 

Power    108 

15  The  Powers  that  be  are  or- 

dained of  God   109 

16  Sinful  Origin  of  the  State  ...  109 

17  Ordination    of    State  by 

Church   no 

18  The  State  an  Ecclesiastical 

Institution   in 

19  The  Sphere  of  Temporal  is 

defined  by  Spiritual  Law  .  112 

20  Subjection     of  Temporal 

Power    112 

2 1  Temporal  Rulers  as  Servants 

of  Church  and  Pope    113 


NOTE  PAGE 

22  The  High  Church  Doctrine 

of  the  Two  Swords   113 

23  Emperors    and  Temporal 

Rulers    as    the  Pope's 
Vassals   114 

24  The  Temporal  Sword  at  the 

Disposal  of  the  Church  ...  115 

25  Direct  Use  by  the  Church 

of  the  Temporal  Sword  ...  115 

26  The  Church  should  respect 

the  Rights  of  Rulers    115 

27  Extraordinary  Use  of  Tem- 

poral Power  by  the  Church    1 16 

28  Translation  of  the  Empire 

by  the  Pope   116 

29  Translatio  Imperii    116 

30  Papal      Appointment  of 

Kaisers  and  Kings   116 

31  The  Pope  and  the  German 

Electors    117 

32  The    Pope's    Part    in  the 

Election  of  an  Emperor.  117 

33  The  Pope's  Guardianship  of 

the  vacant  Realm    117 

34  The  Pope's  power  to  de- 

pose Rulers  and  free 
Subjects  from  the  Oath 
of  Fealty   117 

35  The  Pope's  power  over  Rulers 

other  than  the  Emperor...  n8 

36  Reminiscences  of  the  Sub- 

jection of  Church  to  Realm  1 1 8 
38    Church  and  State  are  co- 

j            ordinate    118 

I  39    Temporal  Law  is  not  de- 
pendent on  the  Canons  ...  118 


^  The  titles  given  to  the  notes  proceed  from  the  translator. 


Subject  Matter  of  the  Notes. 


Ivii 


NOTE  PAGE 

40  Imperium  non  dependet  ab 

ecclesia   119 

41  Imperialists  on  Papal  Claims  120 

42  The  Churchapurely  Spiritual 

Realm    121 

43  Imperialists  concede  supe- 

rior Dignity  of  the  Church  122 

44  The  Celestial  Head  gives 

sufficient  Unity  to  the  two 
powers    122 

45  Church  and   State  in  Co- 

operation   122 

46  Superiority   of    Church  in 

Spirituals  and  of  State  in 
Temporals    123 

47  Occasional   Interference  of 

Pope  in  Temporal  Affairs  124 

48  Occasional   Interference  of 

Kaiser  in  Spiritual  Affairs  124 

49  Unity  within  the  Church  ...  124 

50  The  Church  and  the  Infidels  124 

51  The  Church  is  a  State,  Polity 

or  Commonwealth    125 

52  The  Necessity  of  External 

Unity  doubted   125 

52*  The  Church  as  conceived  by 

Wyclif  and  Hus   125 

53  Universality  of  the  Empire  .  125 
^4    Legitimacy  of  the  Roman 

Empire   125 

55  Transfer  of  the  Empire   126 

56  Universal  Extent  of  the  Em- 

pire  126 

57  The  Empire  is  indestructible 

de  facto   127 

58  The  Empire  is  indestructible 

de  iure    127 

59  Exemption  from  the  Empire 

by  Privilege  or  Prescrip- 
tion   128 

60  Exemptions  would  not  de- 

stroy theoretical  Univer- 
saHty   128 

61  Necessity  of  an  Universal 

Realm  denied   128 


NOTE  PAGE 

62  Wider  and  narrower  Groups  128 

63  Independence  of  the  smaller 

Groups    128 

64  Graduated   Articulation  of 

Communities    129 

66  The  Organic  Comparison  ...  129 

67  The  Mystical  Body  and  the 

Pope  as  its  Head    130 

68  Bicephalism  would  be  mon- 

strous  130 

69  Need  for  a  Temporal  Head  130 

71  Possibility  of  Many-headed- 

ness    130 

72  The  Priesthood  as  Soul  of 

the  Body  Politic    130 

73  The  Representation  of  Soul 

by  the  Priesthood  ques- 
tioned   131 

74  The  Catholic  Concordance 

of  Nicholas  of  Cues    131 

75  The  Body  Mystical,  Moral, 

Politic    131 

76  Anthropomorphic  Conceits  .  131 

77  The  beginnings  of  Anthro- 

pomorphism  132 

78  Anthropomorphism  con- 

tinued   132 

79  Anthropomorphism  and 

State  Medicine    132 

81  Some  Theories  of  Aquinas ..  133 

82  Harmony  of  Organic  Forces  133 

83  Coordination  of  Limbs    133 

84  Goods  of  State  and  Goods 

of  Individual    133 

86  Mutually  Suppletive  Power 

among  Organs    133 

87  The  Idea  of  Membership  ...  134 

88  Likeness    and  Unlikeness 

among  Members   134 

89  Mediate  Articulation    134 

90  Papal  Absolutism  and  the 

Mediate   Articulation  of 

the  Church    135 

91  Organization   and  Interde- 

pendence   135 


iviii      Political  Theories  of  the  Middle  Age. 


NOTE  PAGE 

92  The  Idea  of  Function   135 

93  The  Idea  of  Organ   135 

94  The  Governing  Part    135 

96  Connexion  with  a  Rightful 

Head   136 

97  Need  for  a   single  Head 

denied    136 

98  The  State  a  work  of  Human 

Reason    136 

99  Marsilius  on  the  Origin  of 

the  State    136 

100  The  Divine  Monarchy   137 

101  Divine  Origin  of  the  State  137 

102  Immediately  Divine  Origin 

of  the  State   138 

103  The  Pope  as  Christ's  Vicar  138 

104  The  Emperor  as  Christ's 

Vicar    138 

105  Mediation  of  the  Church 

between  the  State  and 
God   138 

106  Delegation  by  God  of  all 

Human  Power    139 

107  Monarchy  and  Unity    139 

108  Singleness   of  Will   in  a 

Monarchy    139 

109  The  Church  a  Monarchy...  139 
no    Divine  Institution  of  Tem- 
poral Monarchy    139 

111  Monarchythe  Normal  Form 

of  Government    139 

112  References  to  Republics  ...  140 

113  Comparison  of  Forms  of 

Government    140 

114  AnAristocraticWorld-State  140 

115  Necessity  of  Monarchy  in 

the  Church  doubted   140 

116  Preference  of  the  Repub- 

lican Form   140 

117  'Unitas  principatus'  in  a 

Republic   140 

118  Republican  Assembly  as  a 

Collective  Man    140 

119  The  Monarch  outside  and 

above  the  Group   141 


NOTE 

120 

121 
122 
123 
124 

125 
126 
127 

128 
129 

130 

131 

132 
133 

134 

136 

137 
138 

139 

140 

141 

142 
143 

146 


147 
148 


PAGE 

The    Monarch  represents 

Divinity    141 

Apotheosis  of  the  Pope  ...  141 
Apotheosis  of  the  Emperor  141 

Kingship  is  Office   141 

Princes  exist  for  the  Com- 
mon Weal    142 

Purpose  of  the  Ruler    142 

Declension  to  Tyranny  ...  142 
God  rather  than  Man  is  to 

be  obeyed    143 

Passive  Resistance    143 

Nullity  of  Commands  that 

are  ultra  vires  statuentis  143 
Active  Resistance  and  Ty- 
rannicide  143 

The   Pope's   Plenitude  of 

Power   144 

Limits  to  Papal  Sovereignty  144 
Limited  Monarchy  of  the 

Pope    145 

Conditional  Obedience  due 
to  the  Pope.    The  Law 

of  Necessity    145 

Limited  Monarchy  in  the 

Empire    145 

The  State  of  Nature   145 

Beginnings  of  the  Original 

Contract   146 

Right  of  a  People  to  choose 

a  Superior    146 

The  People  as  instruments 

of  God   146 

God  and  the  People  as  the 

Source  of  Power    146 

The  Lex  Regia   147 

Voluntary   Subjection  the 

Ground  of  Lordship   147 

Rights  of  the  Burghers  of 
Rome  when  the  Empire 

is  vacant    147 

The  People  of  Rome  and 

the  Roman  People    147 

The  People's  Part  in  the 
Translation  of  the  Empire  147 


Subject  Matter  of  the  Notes. 


lix 


NOTE  PAGE 

149  The  Roman  Citizens  and 

the  Translation   148 

1 50  Right  of  the  People  during 

a  Vacancy  of  the  Em- 
pire   148 

151  The   Right   to   choose  a 

Ruler    148 

1 52  Consensual  Origin  of  Here- 

ditary Kingship   148 

153  Elective  Rulership  is  pre- 

ferable  149 

154  The  Empire  Elective    149 

155  Theory  and  the  Princely 

Electors    149 

156  The  Pope  as  a  Popular 

Delegate   149 

157  Election,  not  Coronation, 

confers     the  Imperial 
Rights   149 

158  Lex  Regia:  an  irrevocable 

Conveyance    150 

1 59  Lex   Regia  :   a  revocable 

Delegation   150 

160  Absolute  Monarchy  and  the 

Will  of  the  People   150 

161  Nullity  of  the  Monarch's 

Acts  if  they  impair  his 
Fundamental  Rights  ...  150 

162  Nullity  of  Acts  subjecting 

the  Empire  to  the  Church    1 50 

1 64  The  Right  to  depose  a  Ruler 

in  a  case  of  Necessity  ...  151 

165  The  Mixed  Constitution  ...  151 

167  Justice  to  be  done  upon  the 

Ruler    152 

168  The  Deposition  of  Kings...  152 

171  The  Projects  of  Nicholas 

of  Cues    153 

172  Popular    Sovereignty  in 

France    153 

173  Papal  Theory  of  General 

Councils   153 

174  Papal   Elections  :  Repre- 

sentative   Character  of 
Cardinals    154 


NOTE  PAGE 

176  Deposition  of  an  Heretical 

Pope    154 

177  The  Heretical  Pope  is  de- 

posed ipso  facto    154 

178  In  Matters  of  Faith  the  Pope 

is  below  the  Council   1 54 

179  Deposition  of  a  Schismatical 

or  Criminous  Pope    155 

180  Rejection  of  a  Pope  in  a 

case  of  Necessity   155 

182  Marsilius    on    Pope  and 

Council    155 

183  Divine  Right  of  the  Papal 

Primacy  contested    155 

184  Abolition  of  Papal  Primacy 

suggested   156 

187  The  Council  may  judge  the 

Pope    156 

188  Right  of  the  Church  to  as- 

semble and  to  constitute 

a  Council    156 

189  Theory   of  the  Conciliar 

Party    156 

190  Gerson's  Theor)'    157 

191  Practical   Powers    of  the 

Council    157 

192  Power  of  the  Church  to 

assemble   158 

193  Power  ofthe  Council  during 

a  \'acancy  of  the  Holy 

See   '.   158 

194  The  Cardinals  are  Repre- 

sentatives of  the  Whole 
Church    158 

195  An  independent  position  as- 

signed to  the  Cardinals  .  158 

196  Mixed  Government  in  the 

Church    158 

197  The    Council    above  the 

Pope    159 

198  Gerson  on  Divine  Right  of 

the  Papacy   159 

201    Popular  Sovereignty  in  the 

Church    159 

203    Canonists  and  the  Council  160 


Political  Theories  of  the  Middle  Age. 


NOTE 

PAGE 

NOTE 

PAGE 

203 

System    of   Antonius  de 

226 

Rules  of  Corporation  Law 

160 

applied  to  Political  As- 

204 

Popular  Sovereignty  denied 

i6r 

165 

205 

Lay  Representatives  in  the 

227 

Corporation  Law  and  the 

161 

160 

206 

The  Church  an  Institution 

228 

Majorities  how  reckoned... 

100 

rather  than  a  Fellowship 

161 

229 

Majorities  and  Nations  in 

208 

Fallibility  of  every  part  of 

167 

161 

230 

The  Majority  as  a  Repre- 

The  Laity  and  the  Election 

sentation  of  the  Whole... 

167 

162 

231 

Corporate    Torts    of  the 

2  10 

The    Emperor's    Part  in 

167 

162 

232 

Representative  Character 

211 

The  Temporal  Magistrate 

167 

a  Representative  of  the 

233 

The  Council  a  mere  Repre- 

162 

168 

212 

TheObjectificationof  Office 

234 

Election  and  Representa- 

162 

168 

213 

The  Prelate  as  Representa- 

235 

Election    of   Lay  Repre- 

162 

sentatives   

168 

214 

Is  the  Pope  the  Church  ?... 

162 

236 

Representation  in  Temporal 

215  ■ 

Is  the  Pope's  Representa- 

Assemblies  

168 

tion  of  the  Church  un- 

238 

The  Representative  Parlia- 

162 

mentarism  of  Nicholas  of 

216 

Representation  of  the  Em- 

109 

163 

239 

The  Radicahsm   of  Mar- 

217 

Representative  Character 

109 

163 

240 

The    Prince    Electors  as 

218 

The  Monarch's  double  Per- 

169 

163 

241 

The  Cardinals  as  Repre- 

219 

King's  Property  and  State's 

169 

164 

242 

Corporation  Law  and  Im- 

220 

Acts  of  the  Prince  and  Acts 

170 

164 

243 

Corporation  Law  and  Papal 

222 

Duties  towards  Individuals 

170 

and  Duties  towards  the 

244 

Churches  as  Corporations  . 

170 

164 

24!; 

The  Empire  or  State  as 

223 

Rights  of  the  Community 

171 

exercised  by  its  Active 

246 

The  State  has  no  Will  

171 

165 

252 

Mere  Collectivism  in  the 

224 

Representation      of  the 

Concept  of  the  State  ... 

171 

People  as  a  System  of 

253 

The  Church  as  a  Subject  of 

165 

171 

225 

Will   of   the    People  ex- 

'-54 

The  People  as  Collective 

pressed  by  Assemblies  . 

165 

172 

Subject  Matter  of  the  Notes, 


Ixi 


NOTK  PAGE 

255    The  Law  of  Nature  and  the 

Essence  of  Law   172 

257  Nullity    of   Laws  contra- 

vening the  Law  of  Nature    1 74 

258  Revealed  Law  and  Natural 

Law   1 74 

259  Nature  of  the  lus  Gentium  175 

260  Principles  and  Secondary 

Rules    of  the    Law  of 
Nature   175 

261  Positive   Modifications  of 

the  Law  of  God    175 

262  Primeval   and  Secondary 

lus  Gentium    176 

263  ^Mutability  of  Positive  Law    1 76 

264  The  Prince  and  Positive 

Law   176 

265  Potestas  legibus  soluta   176 

266  Only  in  a  Republic  is  the 

Ruler  below  the  Laws  ...  177 

267  The  Ruler  is  always  below 

the  Laws   177 

268  The  '  Rechtsstaatsidee '  ...  177 

269  Popular  Assemblies  above 

the  Laws    178 

270  Omnia  principis  esse  in- 

telliguntur    178 

271  Eminent  Domain    178 

272  The  Right  of  Expropria- 

tion   179 

273  No  Expropriation  without 

Just  Cause :  an  absolute 
Rule  of  Law    179 

274  No  Expropriation  without 

Just    Cause  :    a  good 
general  Rule   179 

275  Compensation  for  the  Ex- 

propriated   180 

276  No  Compensation  in  case 

of  General  Expropriatory 
Law   1 80 

277  No  Compensation  in  a  case 

of  Necessity    180 

278  Proprietary  Rights  proceed 

from  the  lus  Gentium  ...  180 


I    NOTE  PAGE 

j  279    Sacredness    of  Contracts 

I  made  by  the  State    181 

I  280  Rights  founded  on  Positive 
'  Law  are  at  the  mercy  of 

i  the  State   181 

i  281    Revocation  of  '  Privileges' .  181 

283  Nullity  of  the  Donation  of 

Constantine    182 

284  Inalienability    of  Public 

Power   182 

285  Nullity  of  Acts  tending  to 

diminish     the  State's 
Power   183 

286  Inalienability     of  Sove- 

reignty  183 

287  Indestructible  Sovereignty 

of  the  People   183 

288  Essential  Rights  of  the  State 

and    casually  acquired 
Rights  of  the  Fisc    183 

289  Gradual   apprehension  of 

the  Distinction  between 
lus  Publicum  and  lus 
Privatum   184 

290  Nullity  of  the  Sovereign's 

Acts  if  they  conflict  with 
Natural  Law    184 

292  Tribunals  must  give  effect 

to  Acts  of  the  Sovereign 

if  done  deliberately    185 

293  Natural  Law  not  reduced  to 

the  level  of  mere  Ethics  .  185 

294  Coercive     and  Directive 

Force  of  Law    185 

295  Legal  Limits  to  the  Duty 

of  Obedience   186 

296  Unjust  Acts  of  Sovereignty 

to   be    interpreted  into 
Rightfulness    186 

297  Discharge  of  the  Sovereign 

from  the  Moral  Law   186 

302    Natural    Growth    of  the 

State    186 

:  303    Rational    Origin    of  the 

I  State    187 


ixii      Political  Theories  of  the  Middle  Age, 


NOTE  PAGE 

304  The  State  erected  by  Vio- 

lence   

305  The  State  founded  by  In- 

corporation  

306  The  Social  Contract  

307  Voluntary   Subjection  the 

Ground  of  Obedience ... 

308  The  Terms  of  the  Contract 

of  Subjection  

310  Limitation  of  the  Work  of 

the  State  to  the  Main- 
tenance of  Peace  and 
Law  

311  Purposes    of    State  and 

Church   

312  Extension   of  the  State's 

Power  in  a  Spiritual 
Direction   

313  Spiritual  Aims  of  the  State 
315    Lessons    in    the    Art  of 


Government    190 

316    The  Forms  of  Government  190 

319  Possible     Limitation  of 

Monarchy    190 

320  ]\Iixed  Constitutions   190 

323  The  Growth  of  the  Modem 

State.  The  Taxing  Power  190 

324  Equality  before  the  Law  ...  191 

325  State  and  Citizen.  Influ- 

ence of  Antiquity   191 

326  The  Marsilian  Absorption 

of  Church  in  State   191 

327  Attitude  of  the  State  to- 

wards the  Church   192 


NOTE  PAGE 

Church  Property  and  Public 

Property   192 

The  State's  Right  to  reform 

the  Church   193 

lus  Sacrum  is  part  of  lus 

Publicum    193 

Definition  of  the  State   193 

State,     Realm,  Empire, 

Ci  vitas   193 

The  Imperium  as  the  only 

true  Civitas   194 

Legal  Definitions  of  Civitas  194 
City  and  Republic   194 


The  State  cutting  itself 
loose  from  the  Empire ...  195 

Communities  which  do  and 
Communities  which  do 
not  recognize  a  Superior  195 

No  Community  above  the 
State  and  only  Communes 


below  the  State   195 

340  Federal  States    195 

341  Resistance  to  the  Central- 

izing Idea  of  the  State...  196 

342  Political  Theory  and  Feu- 

dalism   196 

343  All  other  Power  is  derived 

by  Delegation  from  Sove- 
reign Power    197 

344  Early  Officialism    197 

345  All  power  proceeds  from 

and  is  revocable  by  the 
State    197 


187 

187 
187 


328 

329 

330 

332 
333 

334 


[88 


189 


335 
336 
337 

338 


339 


LIST  OF  AUTHORITIES. 


I.    The  Medieval  Publicists. 
CentiLiy  XL 

1.  Petrus  Damiani  (born  about  990,  died  1072).    Opera:  ed.  ]\Iigne, 

Patrologiae  Cursus  Completus,  Tom.  145.  [See  also  Libelli  de  Lite 
(Mon.  Germ.)  i.,  p.  15  ff.] 

2.  Gregory  VII.  (pope  1073 — 1085).    Registrum ;  a  collection  of  his 

letters  compiled,  according  to  Jaffe,  by  himself ;  together  with  such 
letters  as  have  otherwise  become  known;  edited  by  Jaffe,  Bibliotheca 
rerum  Germanicarum,  11.  (Monumenta  Gregoriana,  Berol.  1865); 
also  in  Migne,  Tom.  148. 

3.  Henry  IV.  (reign.  1053 — 1106).   Laws  and  Proclamations  in  Monu- 

menta Germaniae,  Leges  11.,  p.  14  sq. 

4.  Petrus  Crassus  CardinaHs.    Complaint  against  Gregory  VIL  on  behalf 

of  the  Synod  at  Brixen  on  25  June  ic8o  :  in  Sudendorf,  Registrum, 
Jenae,  1849,  i-)  PP-  22 — 50;  compared  with  the  edition  in  Ficker, 
Forschungen,  iv.,  pp.  106 — 124.  [See  Libelli  de  Lite  (Mon.  Germ.) 
I.  432  if.] 

5.  Wenrich  of  Trier.  Epistola  ad  Gregorium  VII.  Papam,  d.  a.  1083  ;  in 

Martene,  Thesaurus  Novorum  Anecdotorum,  i.,  pp.  214 — 230.  [See 
LibeUi  de  Lite  (Mon.  Germ.)  i.,  p.  280  ff.] 

6.  Manegold  of  Lautenbach.  Tract  against  Wenrich,  written  1085  (comp. 

P.  Ewald,  in  Forsch.  zurDeut.  Gesch.,  vol.  16,  pp.  383 — 5);  extracts 
in  Floto,  Heinrich  IV.,  vol.  11.,  pp.  299 — 303,  and  information  in  v. 
Giesebrecht,  Magister  Manegold  v.  Lautenbach,  Sitzungsberichte 
der  Bair.  Akad.  1868,  11.,  pp.  297 — 326.  [See  Libelli  de  Lhe  (Mon. 
Germ.)  i.,  p.  301  ff.] 

7.  Wido  Episcopus  Ferrariensis.    De  scismate  Hildebrandi;  composed 

in  1086  (according  to  the  most  recent  investigation:  K.  Panzer, 
Wido  V.  Ferrara  de  scismate  Hildebrandi,  Leipz.  1880);  ed. 
Wilmans  in  Mon.  Germ.  Scriptores  xii.,  pp.  148 — 179.  [See  Libelli 
de  Lite  (Mon.  Germ.)  i.,  p.  529  ff.] 


ixiv      Political  Theories  of  the  Middle  Age. 


8.  Walram   Episcopus   Naumburgensis.   De  unitate  ecclesiae  conser- 

vandae  ;  composed  1093;  in  Schard,  De  iurisdictione  auctoritate 
et  praeeminentia  imperiali  ac  potestate  ecclesiastica,  Basil.  1566, 
pp.  I  — 126.    [See  Libelli  de  Lite  (Mon.  Germ.)  11.,  p.  285  ff.] 

9.  Letter  of  the  Schismatical  Cardinals  against  the    Decree   of  P. 

Gregory  VIL  an.   1095 ;  in  Sudendorf,  loc.  cit.  11.,  nr.  34,  pp. 

45—9^- 

10.  Deusdedit  Cardinalis  (d.  1099).    Contra  invasores  et  simoniacos  et 

reliquos  schismaticos ;  in  Mai,  Nova  P.  P.  Bibl.  vii.,  pars  ult.,  pp. 
77 — III  (only  a  very  imperfect  extract  in  Migne,  loc.  cit,  Tom. 
150,  pp.  1569 — 72).  [See  Libelli  de  Lite  (Mon.  Germ.)  11.,  p. 
292  ff.] 

11.  Goffredus  abbas  Vindocinensis  (d.  1132).  Opera  omnia;  in  Migne, 

loc.  cit.,  Tom.  157.     [See  Libelli  de  Lite  (Mon.  Germ.)  11.,  p. 

676.] 

12.  S.   Anselmus   Cantuariensis    archiepiscopus   (1033 — 1109).  Opera 

omnia,  in  Migne,  loc.  cit.,  Tom.  158 — 9. 

13.  Ivo  Carnotensis  episcopus  (d.  1115).    Opera  omnia;  in  Migne,  loc. 

cit.,  Tom.  161 — 2  ;  the  Epistolae  in  Tom.  162.  [See  Libelli 
de  Lite  (Mon.  Germ.)  11.,  p.  640  ff.] 

Century  XII. 

14.  Sigebert  of  Gembloux.     Writings  in  defence   of  the  Church  of 

Liittich  against  Paschal  XL,  d.  a.  1103;  in  Jaffe,  Bibl.  rer.  Germ.  v. 
201  ff.;  also  in  Schard,  loc.  cit.,  pp.  127 — 141.  [See  Libelli  de  Lite 
(Mon.  Germ.)  11.,  436  ff.J 

15.  Tractatus  de  investitura  episcoporum  per  imperatores  facienda ;  a. 

1109;  in  Schard,  loc.  cit.,  pp.  711 — 17  and  Kunstman  in  Tiib. 
Theol.  Quartalschrift  for  1837:  ascribed  to  Walram  by  Schard; 
ascribed  to  the  diocese  of  Liittich  by  Bernheim,  Forsch.  zur  Deut. 
Gesch.,  vol.  16,  pp.  281 — 95.  [See  Libelli  de  Lite  (Mon.  Germ.) 
II.,  p.  495  ff.] 

16.  Hugo  Floriacensis.  Tractatus  de  regia  et  sacerdotali  dignitate;  written 

between  iioo  and  1106;  in  Stephani  Baluzii  Miscellaneorum  liber 
quartus,  Paris,  1683,  pp.  9 — 68.  [See  Libelli  de  Lite  (Mon.  Germ.) 
II.,  465.] 

17.  Honorius  Augustodunensis  (d.  soon  after  1152).   Summa  gloria  de 

ApostoHco  et  August©  sive  de  praecellentia  sacerdotii  prae  regno ; 
in  Migne,  Tom.  172,  pp.  1257 — 1270.  [See  Libelli  de  Lite  (Mon. 
Germ.)  iii.,  p.  29  ff.] 


List  of  Authorities. 


Ixv 


18.  Hugo  de  S.  Victore  (d.  1141).    Opera  omnia;  in  Migne,  loc.  cit, 

Tom.  175 — 7. 

19.  S.  Bernhardus  abbas  Clarevaliensis  (1091 — 1153).   Operaomnia;  in 

Migne,  loc.  cit.,  Tom.  182 — 6  (Nov.  ed.  Paris.  1879):  especially 
the  Epistolae  (Tom.  182,  p.  67  sq.) ;  those  to  the  Emperor  Lothar 
and  King  Conrad,  also  in  Goldast,  Monarchia  Romani  Imperii, 
Hanov.  1612,  11.,  p.  66  sq.;  and  the  Tract  De  consideratione  libri  v. 
ad  Eugenium  III.  Papam,  I.e.,  Tom.  186,  p.  727  sq.  (in  Goldast,  I.e., 
p.  68  sq.). 

20.  Gerhohus  Reicherspergensis  (1093 — 1169).  Opera  omnia;  in  Migne, 

I.  c,  Tom.  193 — 4.     [See  Libelli  de  Lite  (Mon.  Germ.)  iii.,  p. 

131  ff] 

21.  S.  Thomas  Cantuariensis  archiepiscopus  (Thomas  Becket,  11 16 — 

1 170).    Opera  omnia;  in  Migne,  1.  c,  Tom.  190. 

22.  Johannes   Saresberiensis  (11 20 — 1180).  Opera  omnia;   in  Migne, 

Tom.  199;  therein  the  Epistolae,  p.  i  sq.,  the  Polycraticus,  ann. 
1 1 59,  p.  385  sq.  ;  for  the  latter  the  edition  used  was  Polycraticus 
sive  de  nugis  curialium  et  vestigiis  philosophorum  libri  octo,  Lugd. 
Bat.  1639. 

23.  Frederick  I.  (reign.   11 52 — 11 90).      Laws  and  Proclamations  in 

Monumenta  Germaniae,  Leges  11.,  p.  89  sq.  and  Boehmer,  Regesta 
Imperii ;  Information  in  Wibald  and  Otto  of  Freisingen. 

24.  Wibald  of  Stablo  and  Corvey.    Epistolae  ;  in  Jaffe,  Monumenta  Cor- 

beiensia,  Berol.  1864. 

25.  Writings  of  the  Arnoldists,  1152,  in  Wibald's  Book  of  Concepta,  in 

Jaffe,  1.  c. 

26.  Otto  Frisingensis  (b.  not  before  iiii,  d.  1158).   Chronicon;  com- 

posed between  1143 — 6  ;  in  Monumenta  Germaniae,  Scriptores,  xx., 
p.  131  sq. — Gesta  Friderici  (to  1156)  with  the  continuation  by 
Ragewin  (to  1160)  ib.,  p.  351  sq. 

27.  Alexander  III.  (pope  1159 — 1181).   Opera;  in  Migne,  1.  c,  Tom. 

200. 

28.  Petrus  Blesensis  (d.  1200).    Opera  omnia;  in  Migne,  1.  c,  Tom.  207. 

29.  Petrus  Blesensis  iunior  (nephew  of  the  above).   Opusculum  de  dis- 

tinctionibus  sive  Speculum  iuris  canonici,  ed.  Reimarus,  Berol. 
1837;  written  about  1180. 

30.  Innocent  III.  (pope  1198 — 1216).    Opera;  in  Migne,  I.e.,  Tom. 

214 — 7  ;  therein  the  collection  of  his  letters  (vols.  214 — 6)  and  the 
Registrum  super  negotiis  Romani  Imperii  (vol.  216,  p.  995  sq.). 
3L    Philip  of  Swabia  (i  198— 1208)  and  Otto  IV.  (1198— 1218)  in  Monu- 
menta Germaniae,  Leges  11.,  p.  201  sq. 


M. 


e 


ixvi      Political  Theories  of  the  Middle  Age. 


Cejitury  XIII. 

32.  Frederick  II.  (121 1 — 1250),  in  Monumenta  Germaniae,  Leges  11., 

p.  223  sq. ;  in  P.  Huillard-Breholles,  Historia  diplomatica 
Friderici  II.,  Paris,  1859  sq. ;  and  in  Petrus  de  Vineis. 

33.  Petrus  de  Vineis  (Chancellor  of  Frederick  II.).  Epistolae ;  Basil, 

1566.  Compare  P.  Huillard-Breholles,  Vie  et  correspondance 
de  Pierre  de  la  Vigne,  Paris,  1865. 

34.  Eike  von  Repgow  in  the  Sachsenspiegel  (between  1224  and  1235), 

ed.  Homeyer,  3rd  ed.  1861. 

35.  German  Poets  of  the  time  of  the  Hohenstaufen ;   the  passages 

collected  by  Hofler,  Kaiserthum  u.  Papstthum,  Prag,  1862,  p. 
105  ff. 

36.  Gregory  IX.  (pope  1227 — 1243).     Decretals  in  the  Corpus  iuris 

canonici ;  and  Letters  in  Raynald,  Annal.  eccl.,  vol.  xiii. 

37.  Innocent  IV.  (pope  1243 — 1254).  Decretals  in  the  Corpus  iuris 

canonici ;  and  Letters  in  Raynald^  1.  c. 

38.  Alexander  Halensis  (d.  1245).    Summa  theologica ;  Col.  1622. 

39.  S.  Thomas  Aquinas  (d.  1274).  Opera  omnia;  ed.  Antverp.  1612  and 

Parm.  1852 — 72. — Summa  Theologiae;  ed.  Migne,  Paris,  1864; 
ed.  Antv.  vols,  x. — xii. ;  ed.  Parm.  vols.  i. — iv. — Summa  deveritate 
fidei  contra  gentiles;  ed.  Uccellius,  Romae,  1878  ;  ed.  Antv.  vol.  ix.; 
ed.  Parm.  vol.  v. — In  quattuor  libros  Sententiarum  magistri  Petri 
Lombardi  Comment.;  ed.  Antv.  vols.  vi. — vii.;  ed.  Parm.  vols. 
VI. — VII. — Quaestiones  disputatae  and  Quodlibetanae  s.  Placita; 
ed.  Antv.  vol.  viii. ;  ed.  Parm.  vols.  viii. — ix. — Expositio  on  the 
Psalms;  ed.  Antv.  vol.  xiii. — Commentarius  in  Epistolas  omnes 
Pauli ;  ed.  Ant.  xvi. — Commentary  on  the  Ethics  of  Aristotle ; 
ed.  Antv.  vol.  v. ;  ed.  Parm.  vol.  xxi. — Commentary  on  the  Politics 
of  Aristotle;  ed.  Antv.  vol.  v.;  ed.  Parm.  vol.  xxi.,  p.  366  sq. 
(our  citation  of  pages  refers  to  this  edition). — Opuscula  omnia 
theologica  et  moralia,  Paris,  1656;  in  ed.  Antv.  vol.  xvii. ;  ed. 
Parm.  vols.  xv. — xvi. — In  particular,  Opusc.  i  contra  errores 
Graecorum.— Opusc.  34,  p.  534  sq.  (or  Opusc.  19)  contra  im- 
pugnantes  religionem. — Opusc.  40,  p.  843  sq.  (or  Opusc.  21)  de 
regimine  ludaeorum  ad  Ducissam  Brabantiae. — Opusc.  39,  p. 
764  sq.  (in  ed.  Antv.  Opusc.  39,  f  160^'°,  in  ed.  Parm.  vol.  xvi., 
p.  224  sq.)  de  regimine  principum  ad  regem  Cypri;  unfinished, 
since  only  lib.  i.  and  Hb.  11.  c.  i — 4  come  from  him,  and  the 
continuation   is  by  Ptolomaeus   of  Lucca. — See  Baumann,  die 


List  of  A  tithorities. 


Ixvii 


Staatslehre  des  h.  Thomas  v.  Aquino,  Leipz.  1873.  Nic.  Thoemes, 
Commentatio  literaria  et  critica  de  S.  Thomae  Aquinatis  operibus 
ad  ecclesiasticum,  politicum,  socialem  statum  *  reipublicae  Chris- 
tianae'  pertinentibus  deque  eius  doctrinae  fiindamentis  atque  prae- 
ceptis,  Berol.  1874. 

40.  Vincentius  Bellovacensis  (d.  1274  or  1264).    Speculum  doctrinale, 

lib.  VII. — XI. ;  ed.  Duaci,  1624. 

41.  Sehwabenspiegel  (about  1275),  ed.  Lassberg,  1840. 

42.  Jordanus  of  Osnabriick,  De  praerogativa  Romani  imperii;  written 

about  1281,  probably  in  1285;  ed.  by  Waitz  in  the  Abhandlungen 
der  kon.  Gesellschaft  der  Wiss.  zu  Gottingen,  vol.  14,  p.  43  ff. 

43.  Aegidius  Romanus  Colonna  (1247 — 1315)-    De  regimine  principum 

libri  III.;  written  after  1280;  ed.  per  Simon.  Bevilaquam,  Venet. 
1498. — De  potestate  ecclesiastica  libri  tres,  from  the  description 
and  analysis  of  its  contents  by  F.  X.  Kraus,  Oesterr.  Vierteljahrs- 
'schrift  fiir  kathol.  Theol.,  vol.  i.  (Wien,  1862),  p.  11  ff. 

44.  Engelbert  of  Volkersdorf,  Abbot  of  Admont  (1250 — 13 11).  De 

regimine  principum;  written  in  all  probability  after  1290;  ed. 
Jo.  Georg.  Theophil.  Huffnagl,  Ratisbonae,  s.  a. — De  ortu,  pro- 
gressu  et  fine  Romani  imperii  liber;  probably  between  1307  and 
1310;  ed.  Basil.  1553. 

45.  Ptolomaeus  of  Lucca.    De  regimine  principum;  written  after  1298; 

as  a  continuation  of  Thomas  Aquinas,  De  regimine  principum, 

46.  Dante  Alighieri  (1265 — 1321).     De  Monarchia  libri  tres;  written 

about  1300  (according  to  Witte  1296 — 1299,  according  to  Wegele 
not  until  131 1 — 1313) ;  ed.  altera  per  Carolum  Witte,  Vindobonae, 
1874. 

47.  Boniface  VIII.  (pope  1294— 1303).    Decretals  in  the  Corpus  iuris 

canonici  and  letters  in  Raynald,  1.  c.  vol.  xiv. 

48.  Rudolf  I.  (1273 — 1291),  Adolf  (1292 — 1298)  and  Albert  I.  (1298 — 

1308)  in  Monumenta  Germaniae,  Leges  11.,  pp.  382  sq.,  459  sq., 
466  sq. 

Century  XIV. 

49.  Johannes  Parisiensis  (d.  1306).  Tractatus  de  regia  potestate  et  papali; 

written  about  1303  ;  ed.  in  Schard,  1.  c.  pp.  142 — 224;  in  Goldast^ 
1.  c.  II.,  p.  108  sq. 

50.  Disputatio  inter  militem  et  clericum  super  potestate  praelatis  ecclesiae 

atque  principibus  terrarum  commissa ;  written  about  1303,  perhaps 
by  Peter  Dubois;  ed.  in  Schard,  1.  c.  pp.  677 — 687,  Goldast,  1.  c. 
I.  13  sq. 

e  2 


ixviii     Political  Theories  of  the  Middle  Age. 


51.  Clement  V.  (pope  1305 — 13 14),  in  Corpus  iur.  can.  and  in  Raynald, 

1.  c.  vol.  XV. 

52.  Henry  VII.  (1308 — 131 3),  in  Monumenta  Germaniae,  Leges  11., 

p.  490  sq. 

53.  Guilelmus  Durantis  iunior  (d.  1328).    Tractatus  de  modo  celebrandi 

concilii  et  corruptelis  in  ecclesia  reformandis ;  written  between 
1308  and  13T1;  in  Tractatus  universi  iuris,  Venet.  1584,  xiii.  i, 
p.  154  sq. 

54.  Landulfus  de  Colonna.    De  translatione  imperii;  written  1310 — 1320; 

ed.  Scbard,  1.  c.  pp.  284 — 297,  Goldast,  1.  c.  11.  88  sq. 

55.  Lewis  the  Bavarian  (13 14 — 1348),  in  Boehmer,  Regesta  Imperii. 

56.  John  XXII.  (pope  13 16 — 1334),  in  Corpus  iur.  can.  and  in  Raynald, 

I.  c. 

57.  Marsilius  Patavinus  of  Maynardina  (d.  after  1342).    Defensor  pacis ; 

composed  between  1324  and  1326  with  the  help  of  John  of 
Jandun ;  ed.  s.  1.  1622  ;  also  in  Goldast,  11.  154 — 308. — Tractatus 
de  translatione  imperii  :  written  in  1325  or  1326;  in  Schard,  1.  c. 
pp.  224—237,  Goldast,  II.  147—153. 

58.  Augustinus  Triumphus  de  Ancona  (1243 — 1328).   Summa  de  potestate 

ecclesiastica  ;  written  after  1324  (according  to  Riezler,  but  according 
to  Friedberg  about  1320);  ed.  Romae,  1583. 

59.  Petrus  Paludanus  (Patriarch  of  Jerusalem).    De  causa  immediata 

ecclesiasticae  potestatis ;  written  about  1329;  from  citations  in 
Raynald,  1.  c.  ann.  1328,  nr.  30 — 32  (vol.  xv.,  p.  346  sq.)  and 
Bellarmin,  De  scriptoribus  ecclesiasticis,  p.  271. 

60.  Peter  Bertrand  (Bishop  of  Autun,  afterwards  Cardinal).    De  iuris- 

dictione  ecclesiastica  et  politica ;  written  1329;  ed.  Goldast,  1.  c. 

II.  1261 — 1283. 

61.  Guilelmus  Occam  (ob.  1347).    Opus  nonaginta  dierum ;  written  soon 

after  1330  ;  ed.  Goldast,  1.  c.  11.  993 — 1236. — Compendium  errorum 
Papae  Johannis  XXII.;  written  1335 — 1338;  ed.  Goldast,  11.  957 — 
976. — Octo  quaestiones  ;  written  1339 — 1342;  ed.  Goldast,  11. 
314 — 391. — Dialogus ;  written  in  1342  or  1343,  but  Pars  11.  already 
in  1333  or  1334  ;  ed.  Goldast,  11.  398—957. 

62.  Michael  de  Cesena.    Letters  of  1331,  1333  and  undated  (but  probably 

also  1333),  in  Goldast,  11.  1236,  1238,  1244. — Other  writings  re- 
lating to  the  Minorite  Quarrel,  ib.  pp.  1291 — 1344. 

63.  Alvarius  Pelagius.    De  planctu  ecclesiae  ;  according  to  11.  art.  93  in 

fine,  begun  in  1330  and  finished  in  1332  at  Avignon,  but  according 
to  its  last  words  revised  a  first  time  in  1335  at  Algarbia  in  Portugal 
and  a  second  time  m  1340  at  Compostella  ;  ed.  Lugd.  16 17. 

64.  Documents  relating  to  the  Unions  at  Lahnstein  and  Reuse  in  1338,  in 


List  of  A uthorities. 


Ixix 


Ficker,  zur  Gesch.  des  Kurvereins  von  Rense,  Sitzungsber.  der  k.  k. 
Akad.  der  Wiss.,  vol.  xi.  (1853),  Beilagen,  p.  699  ff. 

65.  Excerpta  ex  libro  Nicolai   Minoritae   de  controversia  paupertatis 

Christi,  in  Boehmer,  Pontes  iv.  588 — 608. — Therein  Articuli  de 
iuribus  imperii  et  praelatorum  ac  principum,  ad  quos  pertinet 
imperatoris  electio,  et  de  iure  domini  Ludovici  IV.  imperatoris,  of 
13385  P-  592  sq. — Tractate  of  1338,  p.  598  sq. — Opinions  of 
Bonagratia  of  Bergamo,  1338,  p.  606  sq. 

66.  Definition  of  the  rights  pertaining  to  Elect  Emperors  and  Kings 

according  to  the  laws  and  customs  of  the  Empire;  ann.  1338;  in 
Ficker,  1.  c.  nr.  6,  p.  709  ff. 

67.  Informatio  de  nullitate  processuum  papae  Johannis  contra  Ludov. 

Bavar.,  1338,  in  Goldast,  i.  18 — 21. 

68.  Lupoid  of  Bebenburg  (d.  1363).    De  iure  regni  et  imperii;  written 

between  1338  and  1340;  ed.  princeps  s.  t.  '  Lupoldus  de  iuribus  et 
translatione  Imperii'  Arg.  1508,  and  ed.  in  Schard,  1.  c.  pp.  328 — 
409. — Libellus  de  zelo  catholicae  fidei  veterum  principum  German- 
orum ;  ed.  Schard,  1.  c.  pp.  410 — 465. — Ritmaticum  querulosum  et 
lamentosum  dictamen  de  modernis  cursibus  et  defectibus  regni  ac 
imperii  Romanorum  ;  ed.  Boehmer,  Fontes,  i.  479  sq. 

69.  Konradof  Megenberg  (circ.  1309 — 1374).    Oeconomica;  written  1352 

— 1362  ;  the  dedicatory  epistle  and  abstract  of  contents  in  Struve, 
Act.  lit.  Jenae  1706,  Fasc.  iv.  81 — 91. — Tractatus  de  translatione 
imperii,  1354  or  1355,  and  Treatise  against  Ockham  from  the  same 
time;  extracts  given  by  Hofler,  Aus  Avignon,  Prag,  1868,  p.  26  ff. 

70.  Johann  von  Buch.    Gloss  on  the  Sachsenspiegel ;  ed.  used  being  those 

by  Zobel,  Leipz.  1525,  and  by  Gartner,  Leipz.  1732. 

71.  The  Town-Clerk  (Stadtschreiber)  Johannes,  in  the  Briinner  Schoffen- 

buch ;  second  half  of  cent.  xiv.  ;  ed.  Rosier,  die  Stadtrecht  v. 
Briinn,  Prag,  1852. 

72.  Petrarca  (1304 — 1374).    Epistolae  de  iuribus  imperii  Romani ;  circ. 

1350—70;  ed.  Goldast,  11.  pp.  1345  (1.  1445)— 1465. 

73.  Quaestio  in  utramque  partem  disputata  de  potestate  regia  et  ponti- 

ficali ;  dedicated  to  Charles  V.  [of  France],  written  probably  about 
1364 — 1380,  and  according  to  Riezler  perhaps  by  Raoul  de  Presles; 
in  Goldast,  11.  95  sq.  (French  translation  i.  39  sq.). 

74.  Somnium  Viridarii ;  written  in  1376  or  1377,  probably  by  Philippe  de 

Mazieres  ;  in  Goldast,  i.  58 — 229. 

75.  Johannes  Wyclifife  (1324 — 1387).  Trialogus  et  supplementum  Trialogi; 

ed.  Oxon.  1869. — The  twenty-four  Articles  condemned  by  the  Synod 
of  London  in  1382. — Compare  Lechner,  Johann  v.  Wiclif,  Leipz. 
1873  (the  Articles,  i.  p.  669  ff.). 


ixx      Political  Theories  of  the  Middle  Age, 


76.  Ubertus  de  Lampugnano.    Utrum  omnes  Christiani  subsunt  Romano 

Imperio;  lecture  delivered  in  1380;  in  Zeitschr.  fUr  geschichtliche 
Rechtswissenschaft,  11,  246 — 256. 

77.  Henricus  de  I.angenstein  dictus  de  Hassia  (1325 — 1397).  Consilium 

pacis  de  unione  ac  reformatione  ecclesiae ;  written  in  1381 ;  in 
Job.  Gerson,  Opera  omnia,  Antverp.  1706,  11.  p.  809  sq. — See  also 
O.  Hartwig,  Henricus  de  Langenstein  dictus  de  Hassia,  Marb. 
1857- 

78.  Konrad  v.  Gelnhausen.    Tractatus  de  congregando  concilio  tempore 

schismatis,  in  Martene,  Thesaurus  anecdot.  11.,  pp.  1200 — 1226. 

79.  Mathaeus  de  Cracovia  (d.  1410).    De  squaloribus  Romanae  curiae, 

inWalch,  Monumenta  medii  aevi,  i.  i,  pp.  i — 100. — Epistola  Univer- 
sitatis  Parisiensis  ad  Regem  Francorum  d.  a.  1394. — Memorandum 
of  1396. — Resolution  of  the  National  Synod  at  Paris  of  1398. — 
Speeches  and  writings  of  Simon  Cramaud,  Pierre  Plaoul,  Aegidius 
de  Campis  de  Rothomago  and  Pierre  du  Mont  de  St  Michel;  as 
given  by  Hiibler,  die  Constanzer  Reformation  und  die  Konkordate 
von  1418,  Leipz.  1867,  p.  360  ff.,  also  in  Schwab,  Joh.  Gerson, 
Wiirzburg,  1858. — Also  Consultatio  de  recusanda  obedientia  Petro 
de  Luna,  circ.  1399,  in  Martene,  1.  c.  11.  1189  sq. — Appellatio 
interposita  per  Leodienses  a  papa  post  subtractionem  obedientiae 
per  eos  sibi  factam,  a.  1400,  ib.  1250  sq. — Letter  of  Simon  Cramaud 
d.  a.  1400,  ib.  1230  sq. 

80.  Tractatus  de  aetatibus  ecclesiae  ;  from  the  time  of  the  Great  Schism ; 

in  Goldast,  i.  30  sq. 

Century  XV. 

81.  Franciscus  de  Zabarellis.    Tractatus  de  schismate  ;  written  circ.  1406  ; 

in  Schard,  pp.  688 — 711. 

82.  Conclusiones  per  studium  Bononiense  a.  1409,  in  Martene,  Ampl. 

Collect.  VIII.  894. 

83.  Octo  conclusiones  per  plures  doctores  in  Ital.  part,  approb.,  in 

Gerson,  Op.  11.  p.  no  sq. 

84.  Petrus  de  AUiaco  (1350 — 1425).    Treatises  and  Speeches  in  the  matter 

of  the  Schism,  in  Gerson,  Op.  i.  p.  489  sq.  and  11.  p.  867  sq.,  also 
Propositiones,  ib.  11.  p.  112;  Tractatus  de  ecclesiastica  potestate, 
a.  1416,  in  V.  d.  Hardt,  Cone.  Const,  vi.  6,  p.  15  sq. — See  also 
Tschackert,  Peter  von  Ailli,  Gotha,  1877. 
85  Johannes  Gerson  (1363 — 1429).  Opera  omnia,  Antverp.  1706. — 
Therein  the  '  Schismatica'  in  Tom.  11. ;  in  particular,  Protestatio 


List  of  Attthorities. 


Ixxi 


super  statu  ecclesiae,  p.  2  ;  Sententia  de  modo  hahendi  se  tempore 
schismate,  p.  3  ;  De  schismate  tollendo,  p.  76  ;  Trilogus  in  materia 
schismatis,  p.  83;  Tractatus  de  unitate  ecclesiastica,  p.  113;  Pro- 
positio,  p.  123;  Sermones,  pp.  131  and  141;  De  auferibilitate 
Papae  ab  ecclesia,  p.  209  ;  De  potestate  ecclesiae  et  origine  iuris  et 
legum  (14 15),  p.  225  ;  Propositio  in  Cone.  Const,  p.  271  ;  Quomodo 
et  an  liceat  in  causis  fidei  a  Papa  appellare,  p.  303. — Also  some  few 
matters  in  Tom.  iii.  (Opera  moralia)  and  iv.  (Opera  exegetica  et 
miscellanea). — See  also  J,  B.  Schwab,  Johannes  Gerson,  Professor 
der  Theologie  und  Kanzler  der  Universitat  Paris,  Wiirzburg,  1858. 

86.  Johannes  Hus  (1373 — 1415).   Determinatio  de  ablatione  temporalium 

a  clericis,  a.  1410;  in  Goldast,  i.  232  sq. — See  also  Lechner, 
Johann  v.  Wiclif,  vol.  11. 

87.  Johannes  Breviscoxa.    De  fide  et  ecclesia,  Romano  pontifice  et  con- 

cilio  generali ;  in  Gerson,  Op.  11.  p.  805  sq. 

88.  Andreas  of  Randuf.    De  modis  uniendi  ac  reformandi  ecclesiam  in 

concilio  universaH ;  written  circ.  1410;  in  Gerson,  Op.  11.  161  sq. 

89.  Theodoricus  de  Niem.   De  schismate;  written  in  the  reign  of  Rupert; 

ed.  Basil,  1566. — Privilegia  et  iura  imperii  circa  investituras  episco- 
patuum  et  abbatiarum;  written  1410 — 1419;  in  Schard,  pp.  785 — 
859. — De  difificultate  reformationis  ecclesiae ;  in  von  der  Hardt, 
1.  c.  1.  6,  p.  255. — De  necessitate  reformationis  ecclesiae,  ib.  i.  7, 
p.  277. 

90.  Nilus  archiepiscopus  Thessalonicus.    De  primatu  Papae  Romani ; 

written  in  all  likelihood  about  1438  (not  about  1360  as  is  supposed 
by  Riezler  and  O.  Lorenz  who  have  followed  in  this  a  mistake 
made  by  Goldast  which  he  himself  corrected  in  the  Diss,  de 
autor.) ;  in  Goldast,  i.  30 — 39. 

91.  Nicolaus  of  Cues  (1401 — 1464).     Opera  omnia,  Basil.  1565.  The 

treatise  De  concordantia  catholica  (to  which  our  references  are 
made  unless  the  contrary  is  stated),  written  1431 — 3  and  presented 
to  the  Council  of  Basel,  is  found  ib.  692  sq.  and  in  Schard,  pp.  465 
— 676. — A  treatise  De  auctoritate  praesidendi  in  concilio  generali, 
in  Diix,  Der  deutsche  Kardinal  Nikolaus  v.  Kusa,  Regensb.  1847, 
I.,  pp.  475 — 491. — See  also  Stumpf,  Die  polit.  Ideen  des  Nicolaus 
v.  Cues,  Koln,  1865  ;  Scharpff,  Nicolaus  v.  Cusa  als  Reformator 
in  Kirche,  Reich  und  Philosophie,  Tiib.  1871. 

92.  Laurentius  Valla.    De  falso  credita  et  ementita  Constantini  dona- 

tione;  written  1439;      Schard,  pp.  734 — 780. 

93.  Gregory  of  Heimburg  (d.  1472).      x\dmonitio  de  iniustis  usurpa- 

tionibus  paparum  Romanorum  ;  written  about  1441  ;  in  Goldast,  i. 
557 — 563. — Controversial  writings  concerning  the  affair  of  Brixen, 


ixxii     Political  Theories  of  the  Middle  Age, 


1460 — 1461,  ib.  II.  1576 — 1595. — Apologia  contra  detractiones  et 
blasphemias  THeodori  Laelii,  ib.  11.  1604  sq. — Invectiva  in 
Nicolaum  Cusanum,  ib.  1622 — 1631. — See  also  Clemens  Brock- 
haus,  Gregor  v.  Heimburg,  Leipz.  1861. 

94.  Theodoricus  Laelius  episcopus  Feltrensis.  Replica  pro  Pio  Papa  II. 

et  sede  Roman  a  ;  in  Goldast,  11.  1595 — 1604. 

95.  Aeneas  Sylvius  Piccolomini  (1405 — 1464,  from  1458  Pope  Pius  II.). 

De  ortu  et  auctoritate  imperii  Romani ;  written  in  1446  ;  in  Schard, 
pp.  314 — 328. — See  also  Voigt,  Enea  Silvio  de'  Piccolomini,  3  vols., 
Berlin,  1856  ff. 

96.  Petrus  de  Monte  (1442 — 1457  Bishop  of  Brixen).  De  potestate 

Romani  pontificis  et  generalis  concilii  s.  de  primatu,  Tract,  univ. 
iuris,  XIII.  I,  p.  144  sq. 

97.  Johannes  a  Turrecremata  (d.  1468).  Summa  de  ecclesia,  Venet. 

1 56 1. — De  pontificis  maximi  conciliique  auctoritate,  Venet.  1563  ; 
under  the  title  De  potestate  papae  et  concilii  generalis  tractatus 
notabilis,  ed.  Friedrich,  Oenoponti,  187 1. 

98.  Antonius  de  Rosellis  (d.   1466).  Monarchia  s.  de  potestate  im- 

peratoris  et  papae;  in  Goldast,  i.  252 — 556. 

99.  Petrus  de  Andlo.  De  imperio  Romano-Germanico ;  written  ini46o  ; 

ed.  Marquardus  Freher,  Norimb.  1657. 

100.  Franciscus  Patricius  Senensis  Pontifex  Cajetanus  (d.  1494).  De 

institutione  reipublicae  libri  ix. ;  ed.  Arg.  1595. — De  regno  et 
regis  institutione  libri  ix.;  addressed  to  King  Alphonso  of  Aragon 
and  Calabria;  ed.  Arg.  1594. 

101.  Klagspiegel;  ed.  Strasb.  1527;  appeared  at  Schwabisch-Hall  near 

the  beginning  of  cent,  xv.,  according  to  Stintzing,  Geschichte  der 
popularen  Litteratur  des  romisch-kanonischen  Rechts  in  Deutsch- 
land,  Leipz.  1867,  p.  353  ff.,  and  Geschichte  der  deutschen 
Rechtswissenschaft,  Miinch.  u.  Leipz.,  i.  p.  43. 

102.  Ulrich  Tengler.    Laienspiegel ;  appeared  in  1509;  ed.  Strasb.  1527. 

103.  Thomas  de  Vio  Cajetanus  (1469 — 1534).    De  auctoritate  papae  et 

concilii  utraque  invicem  comparata ;  written  in  15 11;  in  his 
Opuscula  omnia,  Antv.  161 2,  i.  i. 

104.  Jacobus  Almainus  (d.  15 15).    Expositio  circa  decisiones  Magistri 

G.  Occam  super  potestate  summi  Pontificis;  written  in  15 12;  in 
Gerson,  Op.  11.,  p.  1013  sq.  and  (as  Expositio  de  suprema 
potestate  ecclesiastica  et  laica)  in  Goldast,  i.  588 — 647. — De 
dominio  naturali  civili  et  ecclesiastico ;  in  Gerson,  Op.  11.,  p. 
961  sq. — De  auctoritate  Ecclesiae  et  Conciliorum  generalium,  adv. 
Thomam  de  Vio  Cajetanum ;  ib.  10 13  sq. 


List  of  A uthorities. 


Ixxiii 


II.  Legists^ 

105.  Glossa  Ordinaria,  compiled  by  Accursius  (1182 — 1258):  in  the 

edition  of  the  Corpus  luris  CiviHs,  Venetiis  apud  Juntas  1606, 
compared  with  earher  editions.  [Irnerius  (circ.  iioo)  is  the 
founder  of  the  school;  Bulgarus,  Martinus,  Jacobus,  Hugo  are 
'  the  four  doctors.'] 

106.  Placentinus  (d.  1192).    De  varietate  actionum  (before  1180),  Mog. 

1530- 

107.  Jacobus  de  Arena  (last  mentioned  in  1296).    Commentarii  in  uni- 

versum  ius  civile,  ed.  Lugd.  1541. 

108.  Andreas  de  Isernia  (Neapolitan,  b.  circ.  1220,  d.  13 16).  Super 

usibus  feudorum,  ed.  Lugd.  1561. 

109.  Oldradus  de  Ponte  (de  Laude)  (first  mentioned  1302,  d.  1335). 

Consilia,  ed.  Francof.  1576. 

110.  Jacobus  Buttrigarius  (b.  circ.  1274,  d.  1348).    Lectura  in  Digestum 

Vetus,  ed.  Romae,  1606. 

111.  Cinus  (Guittoncino  Sinibaldi)  (b.  1270,  d.  1336).    Lectura  super 

Codicem,  ed.  Francof.  1578. — Lectura  super  Digestum  Vetus,  in 
eadem  editione. 

112.  Albericus  de  Rosciate  (d.  1354).    Commentarii,  ed.  Lugd.  1545. — 

Dictionarium,  ed.  Venet.  1573. 

113.  Bartolus  de  Sassoferrato  (b.  1314,  d.  1357).    Commentarii — Con- 

silia— Quaestiones — Tractatus.  All  from  the  edition  of  his  works, 
Basil.  1562. 

114.  Baldus  de  Ubaldis  (1327 — 1400).  Commentarii  on  the  various  parts 

of  the  Corpus  luris,  ed.  Venet.  1572 — 3. — Commentarius  in  usus 
feudorum,  written  in  1391,  ed.  Lugd.  1566. — Commentariolum 
super  pace  Constantiae,  in  eadem  editione. — Consiha,  ed.  Venet. 
1575- 

115.  Bartholomaeus  de  Saliceto  (d.  1412).   Commentarius  super  Codice ; 

finished  in  1400;  ed.  Venet.  1503. 

116.  Christoforus  de  Castellione  (1345 — 1425).     Consilia,  ed.  Venet. 

1560. 

117.  Raphael  Fulgosius  (1367 — 1427).    Consilia  posthuma,  Ambergae, 

1607. 

^  On  pp.  186,  238,  351  and  416  Dr  Gierke  gives  long  lists  of  legists  and  canonists. 
"We  here  select  only  such  writers  as  are  referred  to  in  the  chapter  that  is  here  translated. 


ixxiv    Political  Theories  of  the  Middle  Age, 


118.  Johannes  de  Imola  (d.  1436).    Commentarius  on  the  Infortiatum 

and  Digestum  Novum,  ed.  Lugd.  1549. 

119.  Ludovicus  de  Ponte  Romanus   (1409 — 1439).    Commentarii.  ed. 

Francof.  1577. — Consilia,  ed.  Lugd.  1548. 

120.  Paulus  de  Castro,  Castrensis  (d.  1441).   Commentarii  on  Digests 

and  Code,  ed.  Lugd.  1585. 

121.  Johannes  Christophorus  Parous  (Portius,  Porcius)  (from  1434  pro- 

fessor at  Pavia).  Commentarius  in  Institutiones,  ed.  Basil. 
1548. 

122.  Tartagnus,  Alexander  de  Imola  de  Tartagnis  (1424  or  1423 — 1477). 

Commentarii  on  the  three  Digests  and  the  Code,  ed.  Francof. 
16 10. — Consilia,  ed.  Aug.  Taur.  1575  (with  additions  by  Marcus 
Antonius  and  Natta). 

123.  Johannes  de  Platea  (of  Bologna,  cent,  xv^).    Super  Institutionibus, 

ed.  Lugd.  1539. — Super  tribus  ultimis  Ubris  Codicis,  ed.  Lugd. 
1528. 

124.  Paris  de  Puteo  (141 3 — 1493).    Tractatus  de  Syndicatu,  ed.  Francof. 

1608  (also  in  Tr.  U.  J.  vii.  127). 

125.  Johannes  Bertachinus  (d.  1497).    Repertorium  iuris,  Lugd.  15  21. 

126.  Jason  de  Mayno  (1435 — ^S^Q)-    Commentarii  on  the  three  Digests 

and  the  Code,  ed.  Aug.  Taur.  1576. — Consilia,  ed.  Francof.  161 1. 

127.  Paulus  Picus  a  Monte  Pico  (pupil  of  Jason,  professor  at  Pavia,  end 

of  cent.  XV.).    Opera,  ed.  Francof.  1575. 

128.  Johannes  Crottus  (of  Casale,  professor  at  Bologna,  Pavia  and  Pisa, 

circ.  1500).    Consilia,  ed.  Venet.  1576. 

129.  Franciscus  Marcus  (member  of  the  Parlement  of  Dauphine).  De- 

cisiones  Delphinenses,  ed.  Francof  1624. 

130.  Franciscus  Curtius  junior  (d.  1533).    Consilia,  ed  Spirae,  1604. 

131.  Phihppus  Decius  (1454 — 1536  or  1537).    Commentarii  in  Digestum 

vetus  et  Codicem,  ed.  Lugd.  1559. — De  regulis  iuris,  ed.  Col. 
1584. — Consilia,  ed.  Venet.  1570. 

132.  Martinus  de  Caratis  Laudensis.    Lectura  super  feudis,  ed.  Basil. 

1564. — De  fisco,  Tr.  U.  J.  xii.  2. — De  represaliis,  ib.  xii.  279. 


II L  Canonists. 

133.  Glossa  Ordinaria  on  the  Decretum  Gratiani :  compiled  by  Johannes 

Teutonicus  (d.  about  1220):  editions  used  Lugd.  15 12  and 
Argent,  p.  Henr.  Eggesteyn,  147 1. 

134.  Innocentius  IV.,  Sinibaldus  Fliscus  (d.  1254).    Apparatus  (Com- 


List  of  Attthorities. 


Ixxv 


mentaria)  in  libros  quinque  decretalium,  ed.  Francof.  1570: 
finished  soon  after  the  Council  of  Lyons  (1245). 

135.  Bernardus  Compostellanus  iunior.    Lectura  on  the  Decretals  (1245 — 

1260,  unfinished),  ed.  Paris,  15 16. 

136.  Hostiensis,  Henricus  de  Segusia  Cardinalis  Ostiensis  (d.  1 2  7 1 ).  Summa 

aurea  super  titulis  decretalium,  ed.  Basil.  1573  ;  written  after  1250. 

137.  Glossa  ordinaria  on  the  Liber  Extra,  compiled   by  Bernhardus 

Parmensis  de  Botone  (d.  1263) ;  finished  shortly  before  his  death  ; 
ed.  Lugd.  1509  and  Basil.  1482. 

138.  Guilelmus  Durantis,  'Speculator' (1237 — 1296).   Speculum  iudiciale; 

first  finished  in  1272,  revised  before  1287;  ed.  Basil.  1574  and 
Francof.  161 2. 

139.  Glossa  ordinaria  on  the  Liber  Sextus  (1304  or  1305)  and  the 

Clementines  (1326)  by  Johannes  Andreae. 

140.  Johannes  Andreae  Mugellanus  (1270 — 1348).    Novella  in  Decretales 

Gregorii  IX.;  in  i.  et  11.  libr.  ed.  Venet.  1612;  super  iii.  libr.  ed. 
Venet.  1505  ;  super  iv.  et  v.  libr.  ed.  Venet.  1505. 

141.  Idem.  Novella  super  Sexto,  ed.  Lugd.  1527;  written  between  1334 

and  1342. 

142.  Henricus  Bouhic  (Bohic)  (b.  1310,  d.  after  1350).    Distinctiones  in 

Hbros  quinque  Decretalium,  Lugd.  1520;  written  1348. 

143.  Baldus  de  Ubaldis  (1327 — 1400).    Commentarius  super  tribus  prior- 

ibus  libris  decretalium,  Lugd.  1585. 

144.  Petrus  de  Ancharano  (1330 — 141 6).  Lectura  super  sexto  decretalium 

libro,  Lugd.  1543. 

145.  Franciscus  de  ZabarelHs  Cardinalis  (1335 — 1417)-    Commentaria  in 

V.  libros  decretalium,  Venet.  1602. — Lectura  super  Clementinis, 
Venet.  1497;  written  between  1391  and  1410. — Consilia,  Venet. 
1581. 

146.  Antonius  de  Butrio  (1338 — 1408).    Commentaria  in  v.  libros  decre- 

talium, Venet.  1578. — Consilia,  Lugd.  1541. 

147.  Dominicus  de  Sancto  Geminiano  (first  half  of  cent.  xv.).  Lectura 

super  decreto,  Venet.  1504. — Lectura  super  libro  sexto,  Lugd. 
1535. — Consilia  et  Responsa,  Venet.  1581. 

148.  Johannes  ab  Imola  (d.  1436).    Commentarius  super  Clementinis, 

Lugd.  1551. 

149.  Prosdocimus  de  Comitibus  (d.  1438).    De  differentiis  legum  et 

canonum,  Tr.  U.  J.  i.  190. 

150.  Panormitanus,   Nicholaus  de  Tudeschis   (Abbas   Siculus,  Abbas 

modernus)  (d.  1453).  Commentaria,  Venet.  1605  (vols.  i. — vii.). — 
Consilia  et  Quaestiones,  in  eadem  ed.  vol.  viii. ;  the  Quaestiones 
also  in  Selectae  Quaestiones,  Col.  1570,  p.  303. 


ixxvi     Political  Theories  of  the  Middle  Age. 


,     151.    Johannes  de  Anania  (d.  1457).    Commentarius  super  Decretalibus 
and  super  Sexto  Decretalium,  Lugd.  1553. 

152.  Alexander  Tartagnus  ab  Imola  (1424 — 1477).    Consilia,  ed.  Francof. 

1610. 

153.  Cardinalis  Alexandrinus,  Johannes  Antonius  de  S.  Gregorio  (d. 

1509).  Commentaria  super  Decreto,  Venet.  1500;  written  between 
1483  and  1493. 

154.  Philippus  Franchus  de  Franchis  (d.  147 1).    Lectura  in  Sextum 

Decretalium,  Lugd.  1537. 

155.  Dominicus  Jacobatius  Cardinalis  (d.  1527).   Tractatus  de  concilio,  in 

Tr.  U.  J.  XIII.  I,  pp.  190 — 398. 

156.  Hieronymus  Zanettinus  (d.  1493).    Contrarietates  seu  diversitates 

inter  ius  civile  et  canonicum,  in  Tr.  U.  J.  i.  p.  197. 

157.  Benedictus  Capra  (d.  1470).    Regulae  et  Tractatus,  Venet.  1568. — 

Consilia,  Lugd.  1556. 

158.  Ludovicus  Bologninus  (1447 — 1508).   Consilia:  along  \\ith  those  of 

Benedictus  Capra,  Lugd.  1556. 

159.  Felinus  Sandaeus  (1444 — 1503).    Opera,  Lugd.  1540  (Lectura  in 

decretales). 

160.  Philippus  Decius  (1454 — 1536  or  1537).    Super  Decretalibus,  Lugd. 

1551- 


IV.   Modern  Books. 


161.  Forster,  Quid  de  reipublicae  vi  ac  natura  medio  aevo  doctum  sit, 

Vratisl.  1847. 

162.  Forster,  Die  Staatslehre  des  Mittelalters,  AUg.  Monatschr.  fiir  Wiss. 

u.  Litt.  1853,  pp.  832  ff.  and  922  ff. 

163.  Friedberg,  Die  mittelalterlichen  Lehren  iiber  das  Verhaltniss  von 

Kirche  und  Staat,  Zeitschr.  fiir  Kirchenrecht,  vol.  8,  p.  69  ff. 

164.  Friedberg,  Die  Grenzen  zwischen  Staat  und  Kirche,  Tiibingen, 

1872. 

165.  Friedberg,  Die  mittelalterlichen  Lehren  iiber  das  Verhaltniss  von 

Staat  und  Kirche,  Leipz.  1874. 

166.  Hofler,  Kaiserthum  und  Papstthum,  Prag,  1862. 

167.  Dollinger,  Die  Papstfabeln  des  Mittelalters,  Miinchen,  1863. 

168.  Hiibler,  Die  Constanzer  Reformation  und  die  Konkordate  von 

1418,  Leipz.  1867. 

169.  Schulte,  Die  Stellung  der  Koncilien,  Papste  und  Bischofe  vom 

historischen  und  kanonischen  Standpunkte,  187 1. 


List  of  Authorities. 


Ixxvii 


170.  Hergenrother,  Katholische  Kirche  und  christlicher  Staat,  Freiburg 

i.  B.  1872. 

171.  S.  Riezler,  Die  literarischen  Widersacher  der  Papste  zur  Zeit  Ludvvigs 

des  Baiers,  Leipz.  1874. 

172.  F.  V.  Bezold,  Die  Lehre  von  der  Volkssouveranetat  wahrend  des 

Mittelalters,  Hist.  Zeitschr.  vol.  36  (1876),  p.  340  ff. 

173.  W.  Molitor,  Die  Dekretale  Per  Venerabilem  von  Innocenz  III.  und 

ihre  Stellung  im  offentlichen  Recht  der  Kirche,  Miinster,  1876. 

174.  O.  Lorenz,  Deutschlands  Geschichtsquellen  im  Mittelalter  seit  der 

Mitte  des  dreizehnten  Jahrhunderts,  ed.  2,  Berl.  1876,  11.  p.  288  ff. 

175.  W.  V.  Giesebrecht,  Geschichte  der  deutschen  Kaiserzeit,  vol.  iii. 

176.  Raumer,  Geschichte  der  Hohenstauffen  und  ihrer  Zeit,  vol.  vi. 

177.  Wessenberg,  Die  grossen   Kirchenversammlungen  des  15  u.  16 

Jahrh.,  Konstanz,  1845  ff. 

178.  Hefele,  Konciliengeschichte,  vols.  i. — iv.  in  ed.  2. 

179.  Ficker,  Forschungen  zur  Reichs-  u.  Rechtsgeschichte  Italiens,  Inns- 

bruck, 1868 — 1874. 


INDEX  TO  LIST  OF  AUTHORITIES'. 


Accursius  No.  105 
Aegidius  Romanus  No.  43 
Aeneas  Sylvius  No.  95 
Ailly  No.  84 
Alexander  III  No.  27 
Alexander  Halensis  No.  38 
Alexandrinus  No.  153 
AUiaco  No.  84 
Almainus  No.  104 
Alvarius  No.  63 
Anania  No.  151 
Ancharano  No.  144 
Andlo  No.  99 
Andreae  No.  140,  141 
Anselmus  No.  12 
Aquinas  No.  39 
Arena  No.  107 

Augustinus  Triumphus  No.  58 
Augustodunensis  No.  17 

Baldus  Nos.  114,  143 
Bartolus  No.  113 
Bebenburg  No.  68 
Becket  No.  21 
Bellovacensis  No.  40 
Bernard,  St.  No.  19. 
Bertachinus  No.  125 
Bertrand  No.  60 
Blesensis  Nos.  28,  29 
Boehmer  No.  23 
Bologninus  No.  158 
Boniface  VIII  No.  47 


Bouhic  No.  142 

Breviscoxa  No.  87 

Briinner  Schoffenbuch  No.  71 

Buch  No.  70 

Bulgarus  No.  105 

Butrio  No.  146 

Buttrigarius  No.  no 

Caietanus  No.  103 
Cantuariensis,  Thorn.  No.  21 
Capra  No.  157 
Carnotensis  No.  13 
Castellione  No.  116 
Castrensis  No.  120 
Castro  No.  120 
Cesena  No.  62 
Chartres  No.  13 
Cinus  No.  Ill 
Colonna,  Aegid.  No.  43 
Colonna,  Landulf.  No.  54 
Comitibus  No.  149 
Compostellanus  No.  135 
Cracovia  No.  79 
Crassus  No.  4 
Crottus  No.  128 
Curtius  No.  130 
Cues  No.  91 
Cusa  No.  91 
Cusanus  No.  91 

Damiani  No.  i 
Dante  No.  46 


1  This  Index  may  help  a  reader  to  pass 
Authorities. 


from  Dr  Gierke's  notes  to  the  above  List  of 


Index  to  List  of  Authorities. 


Ixxix 


Decius  Nos.  131,  160 
Deusdedit  No.  10 

Disputatio  inter  militem  et  clericum 

No.  50 
Durantis  sen.  No.  138 
Durantis  jun.  No.  53 
Diix  No.  91 

Eike  No.  34 
Engelbert  No.  44 

Felinus  No.  159 
Ficker  Nos.  4,  64,  179 
Fleury  No.  16 
Floriacensis  No.  16 
Franchus  No.  154 
Frederick  II  No.  32 
Frisingensis  No.  26 
Fulgosius  No.  117 

Gelnhausen  No.  78 
Gemblacensis  No.  14 
Geminiano  No.  147 
Gerhoh  No.  20 
Gerson  Nos.  77,  85 
Goffredus  No.  11 
Goldast  No.  19 
Gregory  VII  No.  2 

Halensis  No.  38 
Hardt  No.  84 
Hartwig  No.  77 
Hefele  No.  178 
Heimburg  No.  93 
Hergenrother  No.  170 
Hofler  Nos.  35,  69,  166 
Honorius  No.  17 
Hostiensis  No.  136 
Hiibler  Nos.  79,  168 
Huillard-Breholles  No.  32 
Hus  No.  86 

Imola  Nos.  118,  148 
Innocent  III  No.  30 
Innocent  IV  Nos.  37,  134 
Isernia  No.  108 


Ivo  No.  13 

Jacobatius  No.  155 

Jaffd  Nos.  2,  24 

Jason  No.  126 

Job.  Andreae  Nos.  140,  141 

Job.  Parisiensis  No.  49 

Job.  Saresberiensis  No.  22 

Klagspiegel  No.  loi 

Laelius  No.  94 
Lampugnano  No.  76 
Landulfus  No.  54 
Langenstein  No.  77 
Laudensis  No.  132 
Lautenbacb  No.  6 
Lechner  No.  75 
Lucca  No.  45 
Lupoldus  No.  68 

Mai  No.  10 
Manegold  No.  6 
Marcus  No.  129 
Marsilius  No.  57 
Martene  No.  5 
Martinus  No.  10$ 
Megenberg  No.  69 
Migne  No.  i 
Minorita  No.  65 
Molitor  No.  173 
Mont  de  St  Michel  No.  79 
Monte  No.  96 

Naumburgensis  No.  8 
Nicolaus  Minorita  No.  65 
Niem  No.  89 
Nilus  No.  90 

Ockham  No.  61 
Oldradus  No.  109 
Osnabriick  No.  42 

Paludanus  No.  59 
Panormitanus  No.  150 
Parcus  No.  121 


ixxx     Political  Theories  of  the  Middle  Age, 


Parisiensis  No.  49 
Patavinus  No.  57 
Patricius  Senensis  No.  100 
Pelagius  No.  63 
Petrarca  No.  72 
Petrus  Bertrand  No.  60 
Petrus  Blesensis  Nos.  28,  29 
Petrus  Crassus  No,  4 
Petrus  Damiani  No.  i 
Petrus  de  Alliaco  No.  84 
Petrus  de  Monte  No.  96 
Petrus  de  Vineis  No.  33 
Petrus  Paludanus  No.  59 
Picus  No.  127 
Pius  II  No.  95 
Placentinus  No.  106 
Platea  No.  123 
Ponte  Nos.  109,  119 
Prosdocimus  No.  149 
Ptolomaeus  No.  45 
Puteo  No.  124 

Quaestio  in  utramque  partem  No.  73 

Randuf  No.  88 
Raynald  No.  36 
Reicherspergensis  No.  20 
Repgow  No.  34 
Romanus,  Aegidius  No.  43 
Rosciate  No.  112 
Rosellis  No.  98 

Sachsenspiegel  No.  34 
Saliceto  No.  115 
Salisbury  No.  22 
Sandaeus  No.  159 
Sarisberiensis  No.  22 
Schard  No.  8 
Schulte  No.  169 
Schwab  Nos.  79,  85 
Schwabenspiegel  No.  41 


Senensis  No.  100 
Siena  No.  100 
Sigebertus  No.  14 
Somnium  Viridarii  No.  74 
Speculator  No.  138 
Stablo  No.  24 
Sudendorf  No.  4 
Sylvius,  Aeneas  No.  95 

Tartagnus  Nos.  122,  152 

Tengler  No.  102 

Teutonicus  No.  133 

Thessalonicus  No.  90 

Thomas  Aquinas  No.  39 

Thomas  Cantuariensis  No.  21 

Torquemada  No.  97 

Tr.  U.  J.  [tractatus    universi  iuris] 

No.  53 
Trier  No.  5. 
Triumphus  No.  58 
Turrecremata  No.  97 

Ubertus  No.  76 

Valla  No.  92 

Victore,  Sancto  No.  18 

Vincentius  No.  40 

Vindocinensis  No.  11 

Vineis  No.  33 

Viridarii  Somnium  No.  74 

Volkersdorf  No.  44 

Walramus  No.  8 
Wenrich  No.  5 
Wessenberg  No.  177 
Wibald  No.  24 
Wido  No.  7 
Wyclif  No.  75 

Zabarella  Nos.  81,  145 
Zanettinus  No.  156 


POLITICAL  THEORIES  OF  THE 
MIDDLE  AGE. 


I.     The  Evolution  of  Political  Theory, 
The  development  by  Legists  and  Canonists  of  a  The 

<-r>i  r  •  •  beginning 

i  heory  oi  Corporations  came  mto  contact  at  many  of  Political 
points  with  the  efforts  of  the  Medieval  Spirit  rationally  ^^^^^^^ 
to  comprehend  Church  and  State  in  their  entirety,  and 
therefore  scientifically  to  conceive  the  nature  of  all 
Human  Society.  '  For  the  first  beginnings  of  this 
movement  we  may  look  as  far  back  as  the  great 
Quarrel  over  the  Right  of  Investiture,  but  not  until 
the  thirteenth  century  did  it  issue  in  a  definite  Theory 
of  Public  Law.'  From  that  time  onwards  the  doctrines 
of  the  Publicists,  doctrines  which  were  being  steadily 
elaborated  and  unfolded,  became  no  mere  doctrines 
of  Public  Law,  but  were  also  the  exponents  of  an 
independent  Philosophy  of  State  and  Law  such  as 
had  not  previously  existed.  And  just  because  this  was 
so,  they  introduced  a  quite  new  force  into  the  history 
of  legal  ideas. 

This  result  was  due  to  the  co-operation  of  various  Co-opera- 
sciences.   Theology  and  Scholastic  Philosophy,  Political  various 
History  and  practical  arguments  touching  the  questions 
of  the  day,  here  encountered  both  each  other  and 


2    Political  Theories  of  the  Middle  Age. 


professional  Jurisprudence  in  one  and  the  same  field. 
Their  starting-points,  their  goals,   their  equipments 
might  be  different ;  still  here  as  elsewhere  Medieval 
Science  preserved  a  high  degree  of  unity  and  generality. 
In  the  first  place,  though  a  war  of  opinions  over  the  great 
questions  of  Public  Law  might  be  loudly  raging,  still 
all  men  shared  one  common  concept  of  the  Uni verse, V 
the  supreme  premisses  being  regarded  by  medieval 
minds  as  no  discoveries  to  be  made  by  man,  but  as 
the  divinely  revealed  substratum  of  all  human  science. 
"^^Secondly,  men  readily  borrowed  on  all  sides  whatever^ 
they  needed,'  so  that  there  was  an  always  increasing 
store  of  intellectual  treasure  amassed  by  co-operative 
labour  and  common  to  all. 
Diversity        1^  this  manner  elements  that  derived  from  the 

of  mate-  ,  .  i  t  t  i 

rials.  most  diversg  sources  were  fused  into  a  system.  Holy 
Writ  and  the  expositions  thereof, '  Patristic  Lore  and 
more  especially  the  ^  Civ  it  as  Dei  of  Augustine,  these 
furnished  the  medieval  Doctrine  of  Society  with  its 
specifically  Christian  traits.  Genuinely  Germanic  ideas 
flowed  into  it  from  the  tales  of  medieval  historians  and 
from  the  popular  thought  which  those  tales  had  in- 
fluenced. The  resuscitation  of  the  Political  Philosophy 
of  the  Antique  World,  and  above  all  the  exaltation  of 
the  'Politics  of  Aristotle  to  the  position  of  an  irrefragable 
canon,  had  from  the  first  dictated  at  least  the  scientific 
form  of  the  whole  doctrine.  And  then  to  all  that  was 
obtained  from  these  various  sources  Jurisprudence 
added  the  enormous  mass  of  legal  matter  that  was 
enshrined  in  Roman  and  Canon  Law,  and,  to  a  smaller 
degree,  in  the  ordinances  of  the  medieval  Emperors, 
for  Jurisprudence  regarded  what  these  texts  had  to  say 
of  Church  and  State,  as  being  not  merely  the  positive 
^  statutes  of  some  one  age,  but  rules  of  eternal  validity 
flowing  from  the  very  nature  of  things. 


The  Course  of  Development.  3 


Then  again,  in  the  method^_o£Jiaiidl^  this  wealth  ^^^^^^^ 
of  material  the  tendencies  of  the  different  sciences 
supplemented  each  other.  ^^The  deepest  speculative 
penetration  falls  to  the  share  of  the  ^theologian  and  ^ 
'philosopher ;  the  keenest  practical  appreciation  of 
newly-won  ideas  falls  to  the  share  of '  politicians  with 
an  eye  on  the  question  of  the  hour  ;  still  Jurisprudence, 
albeit  with  some  hesitation,  yielded  to  the  impulses 
that  were  thus  given/''  Conversely,  it  was  professional  ^ 
Jurisprudence  which  by  its  assiduously  detailed  work 
brought  the  aerial  scheme  of  thought  into  combination 
with  the  actual  public  life  of  great  and  small  societies, 
and  by  so  doing  both  started  a  science  of  Positive 
Public  Law^  and  provided  the  philosopher  and  the 
speculative  politician  with  a  series  of  legal  concepts 
serviceable  for  the  construction  of  a  system.  More- 
over, at  this  point  the  other  writers  adhered  as  closely 
as  was  possible  to  the  Legists,  Canonists,  and  Feudists, 
and  by  so  doing  began  to  give  to  their  abstractions  and 
their  postulates  a  stable  formulated  shape  and  a  more 
solid  basis  among  realities. 

''Thus,  notwithstanding^  the  diversity  of  its  sources  V"^^-^ 

^    ^  /  the  move- 

and  its  confluents,  the  Medieval  Doctrine  of  State  and^Jnent. 
Society  flowed  along  one  single  bed.''  Within  that  bed 
were  commotions  that  shook  the  world.  But  all  this 
conflict  between  opinions,  ecclesiastical  and  secular, 
absolutistic  and  democratic,  only  accelerated  the  speed 
of  a  current  which  as  a  whole  swept  onw^ards  in  but 
one  direction. 

Beneath  this  movement,  however,  there  was  an  Medieval 
internal  contest,  which  in  the  history  of  ideas  was  of  Antique- 
more  importance  than  all  the  external  differences  be-  Thought, 
tween  partizans  :  namely, the  contest  between  Properly 
Medieval  and  'Antique-Modern'  Thoughtf  ^ 
-'Throughout  the  Middle  Age  and  even  for  a  while  ^^j^^^^^]^^^ 

I — 2 


4    Political  Theories  of  the  Middle  Age. 


longer,  the  outward  framework  of  all  Political  Doc- 
trine consisted  of  the  grandiose  but  narrow  system  of 
thoughts  that  had  been  reared  by  the  Medieval  Spirit." 
It  was  a  system  of  thoughts  which  culminated  in  the 
idea  of  a  Community  which  God  Himself  had  con- 
stituted and  which  comprised  All  Mankind.  This 
system  may  be  expounded,  as  it  is  by  Dante,  in  all  its 
purity  and  all  its  fulness,  or  it  may  become  the  shadow 
of  a  shade  ;  but  rudely  to  burst  its  bars  asunder  is  an 
exploit  which  is  but  now  and  again  attempted  by  some 
bold  innovator. 

Antique-  Noue  the  less,  this  Political  Doctrine,  even  when 
Thought,  it  was  endeavouring  contentedly  to  live  within  the 
world  of  medieval  thoughts,  had  from  the  first  borne 
into  that  world  the  seeds  of  dissolution.  "^To  the  cradle 
of  Political  Theory  the  Ancient  World  brought  gifts  : 
an  antique  concept  of  The  State,  an  antique  concept 
of  Law.  Of  necessity  these  would  work  a  work  of 
destruction  upon  the  medieval  mode  of  thought.  As 
a  matter  of  fact  the  old  system  began  internally  to 
dissolve.  The  several  elements  that  were  thus  set 
free  began  to  combine  with  the  antique  ideas,  and  from 
these  combinations  new  mental  products  issued.  So 
much  of  Medieval  Thought  as  was  in  this  wise  com- 
pletely fused  with  the  Antique  Tradition  came  down 
with  that  Tradition  into  the  Modern  World,  and  be- 
came the  specifically  modern  factor  in  the  scheme  of 
Natural  Law.  All  the  more  irreparable  was  the  down- 
fall of  the  Medieval  System. 
Advance  If  from  the  point  at  which  we  have  placed  our- 
tique"-"  selves  we  survey  the  Political  Doctrine  of  the  Middle 
Hiought  within  the  medieval  husk  an  '  antique- 

modern  '  kernel.  Always  waxing,  it  draws  away  all 
vital  nutriment  from  the  shell,  and  in  the  end  that  shell 
is  broken.    Thus  the  history  of  the  Political  Theories 


The  Course  of  Development.  5 


of  the  Middle  Age  is  at  one  and  the  same  time  a 
history  of  the  theoretical  formulation  of  the  System  of 
Medieval  Society  and  the  history  of  the  erection  of 
that  newer  edifice  which  was  built  upon  a  foundation 
of  Natural  Law.  As  might  be  expected,  we  may  see 
great  differences  between  the  different  writers  and 
manifold  fluctuations.  Still,  if  we  look  at  the  whole 
movement,  there  is  a  steady  advance  all  along  the 
line.  'We  may  say  that  the  first  forces  to  tread  the 
road  that  leads  away  from  the  Middle  Age  are  the 
champions  of  Papal  Absolutism,^'though  to  a  first  glance 
they  seem  so  genuinely  medieval.  Tlienjdiestu^^ 
^^nianj^w  and 'the  arguments  for  Imperial  Abso- 
lutism with  which  it  supplies  the  Hohenstaufen  really 
march  in  the  same  direction.  New  forces  were  mar-  ^ 
shalled  by  the  scholastic  students  of  the  Aristotelian 
Philosophy,  and  even  Thomas  of  Aquino  uncon- 
sciously laboured  in  a  work  of  destruction  and  innd^ 
vation.  A  new  and  powerful  impulse  was  given  by 
the  literary  strife  that  broke  forth  in  France  and 
Germany  when  the  fourteenth  century  was  young : 
strife  over  the  relation  between  Church  and  State,  in 
the  course  whereof  'many  of  the  ideas  of  the  Reforma- 
tion, and  even  'many  of  the  ideas  of  the  French  Re- 
volution were  proclaimed,  though  in  scholastic  garb, 
by  such  men  as  'Marsilius  of  Padua  and  William  of 
Ockham.  '  Then  along  very  various  routes  'the  writers 
of  the  Conciliar  Age  forwarded,  whether  they  liked  it 
or  no, 'the  victorious  advance  of  the  Antique-Modern 
forces.  Finally  in  the  fifteenth  century  iHumanism^ 
broke  with  even  the  forms  of  the  Middle  Age  and,  in 
its  desire  to  restore  the  purely  classical,  seemed  for  a 
while  to  be  threatening  those  medieval  elements  with- 
out the  retention  of  which  the  Modern  World  could 
not  have  been  what  it  is.    The  drift  towards  Antiquity 


6    Political  Theories  of  the  Middle  Age. 

pure  and  undefiled,  whether  it  takes  with  Aeneas 
Sylvius  the  turn  to  absolutism  or  with  Patricius  of 
Siena  the  turn  to  republicanism,  did  as  a  matter  of 
fact  wholly  repulse  for  a  season  the  Germanic  notions 
of  State  and  Law.  Yet  was  the  medieval  tradition 
held  by  the  many,  and  on  the  other  hand  the  thoughts 
of  the  German  Reformation  were  being  prepared. 
Revolutionary  thoughts  they  were,  but  harmonious  in 
their  innermost  characteristics  with  the  work  of  the 
Germanic  Spirit.  Isolated,  it  is  true,  and  in  the  shape 
that  he  gave  it  fruitless,  appears  the  effort  of  Nicholas 
of  Cues.  The  genius  of  his  powerful  mind  endeavoured 
to  unify  two  ages,  and,  as  it  were,  to  bring  to  a  new 
birth  and  to  modern  vigour  the  medieval  system  of 
ideas.  But  fundamental  Germanic  thoughts  which  lay 
in  that  system  lived  on,  doing  a  mighty  work  both 
among  the  political  ideas  of  the  Reformation  and  also 
in  the  construction  of  the  '  nature-rightly '  Doctrine  of 
the  State. 

Influence      ^  As  to  the  relation  between  the  development  of 
poration    PoHtical  Theory  and  that  Doctrine  of  Corporations 
PoiTtica?^  upon  which  Legists  and  Decretists  had  laboured,  we 
Theory,    shall  See  that  it  was  just  this  lore  of  Corporations 
which  furnished  Political  Theory  with  genuinely  legal 
elements.^'   Not  only  were   the   Jurists  themselves 
acquiring  a  Theory  of  Church  and  State  which,  at 
least  in  part,  was  obtained  by  a  direct  application  of 
the  ideas  and  rules  of  Corporation  Law  to  the  largest 
and  highest  Communities,  but  the  Philosophers  and 
Speculative  Politicians,  though  they  might  hold  that 
a  mere  corporation  was  unworthy  of  their  attention, 
borrowed  from  this  quarter  a  wealth  of  ideas  and  rules 
that  could  be  employed  in  the  scientific  construction  of 
Church  and  State. 

Conversely,  Political  Theory  necessarily  reacted 


Macrocosm  and  Microcosm. 


7 


Upon  the  Doctrine  of  Corporations.    For  one  thine:,  influence 

11  r  i_  £:  J  ^1  of  Political 

the  latter  was  trom  the  very  nrst,  and  as  a  matter  of  Theory 
course  called  upon  to  represent  the  fundamental  thought  corpora- 
of  the  world-embracing  Medieval  Spirit  touching  the 
highest  and  widest  of  all  Communities.  And,  on  the 
other  hand,  every  advance  of  the  '  antique-modern ' 
idea  of  The  State  was  a  preparation  for  the  negative 
and  destructive  influence  which  modern  modes  of 
thought  have  brought  to  bear  upon  the  medieval  lore 
of  corporations. 

Having  thus  indicated  the  main  tendencies  and 
combinations  that  will  deserve  our  attention,  we  may 
now  more  closely  examine  those  leading  thoughts 
which  find  a  theoretical  formulation  in  the  Political 
Doctrine  of  the  Middle  Age. 


II.    Macrocosm  and  Microcosm. 

^  Political  Thought  when  it  is  genuinely  medieval  ^^^^^^^^^^^^^ 
starts  from  the  Whole,  but  ascribes  an  intrinsic  value  and  the 
to  every  Partial  Whole  down  to  and  including  the 
Individual.  If  it  holds  out  one  hand  to  Antique 
Thought  when  it  sets  the  Whole  before  the  Parts, 
and  the  other  hand  to  the  Modern  Theories  of  Natural 
Law  when  it  proclaims  the  intrinsic  and  aboriginal 
rights  of  the  Individual,  its  peculiar  characteristic  is 
that  it  sees  the  Universe  as  one  articulated  Whole 
and  every  Being — whether  a  Joint-Being  (Community) 
or  a  Single- Being — as  both  a  Part  and  a  Whole  :  a 
Part  determined  by  the  final  cause  of  the  Universe, 
and  a  Whole  with  a  final  cause  of  its  own. 

This  is  the  orig^in  of  those  theocratic  and  spiritual-  The  idea 

...  .  .  ofTheo- 

istic  traits  which  are  manifested  by  the  Medieval  cracy. 
Doctrine  of  Society.'*  On  the  one  side,  every  ordering 
of  a  human  community  must  appear  as  a  component 


8    Political  Theories  of  the  Middle  Age, 


part  of  that  ordering  of  the  world  which  exists  because 
God  exists,  and  every  earthly  group  must  appear  as  an 
organic  member  of  that  Civitas  Dei,  that  God-State, 
which  comprehends  the  heavens  and  the  earth.  Then, 
on  the  other  hand,  the  eternal  and  other-worldly  aim 
and  object  of  every  individual  man  must,  in  a  directer 
or  an  indirecter  fashion,  determine  the  aim  and  object 
of  every  group  into  which  he  enters. 
The  ^^But  as  there  must  of  necessity  be  connexion  be- 

Harmony.  tween  the  vaHous  groups,  and  as  all  of  them  must  be 
connected  with  the  divinely  ordered  Universe,  we  come 
by  the  further  notion  of  a  divinely  instituted  Harmony 
which  pervades  the  Universal  Whole  and  every  part 
thereof.  ^'  To  every  Being  is  assigned  its  place  in  that 
Whole,  and  to  every  link  between  Beings  corresponds 
a  divine  decree.  But  since  the  World  is  One  Organism, 
animated  by  One  Spirit,  fashioned  by  One  Ordinance, 
the  self-same  principles  that  appear  in  the  structure  of 
the  World  will  appear  once  more  in  the  structure  of  its 
every  Part.  Therefore  every  particular  Being,  in  so 
far  as  it  is  a  Whole,  is  a  diminished  copy  of  the 
World ;  it  is  a  Microcosnitis  or  Minor  Mtmdtis  in 
which  the  Macrocosmus  is  mirrored.  In  the  fullest 
measure  this  is  true  of  every  human  individual ;  but  it 
holds  good  also  of  every  human  community  and  of 
human  society  in  general.  Thus  the  Theory  bf  Human 
Society  must  accept  the  divinely  created  organization 
of  the  Universe  as  a  prototype  of  the  first  principles 
which  govern  the  construction  of  human  communities^ 


Unity  in  Church  and  State. 


9 


III.     Unity  in  Chtirch  and  State. 
"■'Now  the  Constitutive  Principle  of  the  Universe  isTheprin- 

^  ^    ciple  of 

in  the  first  place  Unity/'  God,  the  absolutely  One,  is  Unity, 
before  and  above  all  the  World's  Plurality,  and  is  the 
one  source  and  one  goal  of  every  Being.  Divine 
Reason  as  an  Ordinance  for  the  Universe  [lex  aeterna) 
permeates  all  apparent  plurality.  ^'Divine  Will  is  ever 
and  always  active  in  the  uniform  government  of  the 
World,  and  is  directing  all  that  is  manifold  to  one 
only  end.^ 

Therefore  wherever  there  is  to  be  a  Particular  or  The  Unity 

•  1    TTTi    1         •  1  •  11*       of  Man- 

Partial  Whole  with  some  separate  aim  and  object  kind. 

subordinated  to  the  aim  and  object  of  the  Universe, 

the  Principle  of  Unity  [pri^icipitim  tinitatis)  must  once 

more  hold  good.  '  Everywhere  the  One  comes  before 

the  Many.    All  Manyness  has  its  origin  in  Oneness 

(omnis  nmltitudo  derivatur  ab  uno)  and  to  Oneness  it 

returns  {ad  unum  redtccittcr).     Therefore  all  Order 

consists  in'  the  subordination  of  Plurality  to  Unity 

[ordinatio  ad  tmum),  and  never  and  nowhere  can  a 

purpose  that  is  common  to  Many  be  effectual  unless 

the  One  rules  over  the  Many  and  directs  the  Many  to 

the  goal. So  is  it  among  the  heavenly  spheres  ;  so  in 

the  harmony  of  the  heavenly  bodies,  which  find  their 

Unity  in  the  primum  mobile.    So  is  it  in  every  living 

organism.    Here  the  Soul  is  the  aboriginal  principle,  ^^ 

while  Reason  among  the  powers  of  the  Soul  and  the 

Heart  among  the  bodily  organs  are  the  representatives 

of  Unity.    So  is  it  in  the  Whole  of  inanimate  nature, 

for  there  we  shall  find  no  compound  substance  in 

which  there  is  not  some  one  element  which  determines 

the  nature  of  the  Whole.    Not  otherwise  can  it  be  in 

the  Social  Order  of  Mankinds     Here   also  every 


lo  Political  Theories  of  the  Middle  Age. 



Plurality  which  has  a  common  aim  and  object  must  in 
relation  to  that  aim  and  object  find  source  and  norm 
and  goal  in  a  ruling  Unity,  while,  on  the  other  hand, 
every  of  those  Parts  which  constitute  the  Whole,  must, 
in  so  far  as  that  Part  itself  is  a  Whole  with  a  final 
cause  of  its  own,  itself  appear  as  a  self-determining 
Unit"*.  Unity  is  the  root  of  All,  and  therefore  of 
all  social  existence'. 
Mankind  Then  in  the  Middle  Age  these  thoughts  at  once 
Com-  issue  in  the  postulate  of  an  External,  Visible  Com- 
munity. j-Qui^ity  comprehending  All  Mankind.  In  the  Universal 
Whole,  Mankind  is  one  Partial  Whole  with  a  final 
cause  of  its  own,  which  is  distinct  from  the  final  causes 
of  Individuals  and  from  those  of  other  Communities^ 
Therefore  in  all  centuries  of  the  Middle  Age^Christen- 
dom,  which  in  destiny  is  identical  with  Mankind,  is  set 
before  us  as  a  single,  universal  Community,  founded 
■  and  governed  by  God  Himself.  \; Mankind  is  one 
*  mystical  body '  ;  it  is  one  single  and  internally  con- 
nected '  people '  or  '  folk '  ;  it  is  an  all  embracing 
corporation  {tinivej^sitas),  which  constitutes  that  Uni- 
versal Realm,  spiritual  and  temporal,  which  may  be 
called  the  Universal  Church  {ecclesia  zmiversalis) ,  or, 
with  equal  propriety,  the  Commonwealth  of  the  Human 
Race  [respziblica  generis  ktcmani).  Therefore  that  it 
may  attain  its  one  purpose,  it  needs  One  Law  (lex) 
and  One  Government  {zmictcs  principatusy !^ 
Separation  Then  however,  along  with  this  idea  of  a  single 
•  and'state.  Community  comprehensive  of  Mankind,  the  severance 
of  this  Community  between  two  organized  Orders  of 
Life,  the  spiritual  and  the  temporal,  is  accepted  by  the 
Middle  Age  as  an  eternal  counsel  of  God.  "^In  century 
after  century  an  unchangeable  decree  of  Divine  Law- 
seems  to  have  commanded  that,  corresponding  to  the 
doubleness  of  man's  nature  and  destiny,  there  must  be 


Unity  in  Church  and  State.  1 1 


two  separate  Orders,  one  of  which  should  fulfil  man's 
temporal  and  worldly  destiny,  while  the  other  should 
make  preparation  here  on  earth  for  the  eternal  here- 
after. //And  each  of  these  Orders  necessarily  appears 
as  an  externally  separated  Realm,  dominated  by  its 
own  particular  Law,  specially  represented  by  a  single 
Folk  or  People  and  governed  by  a  single  Govern- 
mentl 

^  The  conflict  between  this  Duplicity  and  the  requisite  Duality  of 
Unity  becomes  the  starting-point  for  speculative  d  IS-  and  State  - 
cussions  of  the  relation  between  Church  and  State.'^^o^'nity. 
The  Medieval  Spirit  steadily  refuses  to  accept  the 
Dualism  as  final.     In  some  higher  Unity  reconciliation 
must  be  found.    This  was  indubitable  ;  but  over  the 
nature  of  the  reconciling  process  the  great  parties  of 
the  Middle  Age  fell  a-fighting. 

^  The  ecclesiastical  party  found  a  solution  of  the  The  High 
problem  in  the  Sovereignty  of  the  Spiritual  Powerf Theory : 
Always  more  plainly  the  Principle  of  Unity  begins  to  fy^ofthr 
appear  as  the  philosophical  groundwork  of  that  theory  c^^^^^^- 
which,  from  the  days  of  Gregory  VH  onwards,  was 
demanding — now  with  more  and  now  with  less  rigour 
— thai' all  political  arrangements  should  be  regarded  as 
part  and  parcel  of  the  ecclesiastical  organization.^-  The 
'  argumentum  unitatis '  becomes  the  key-stone  of  all 
those  other  arguments,  biblical,  historical,  legal,  which 
support  the  papal  power  over  temporal  affairs^  ^^If  ' 
Mankind  be  only  one,  and  if  there  can  be  but  one 
State  that  comprises  all  Mankind,  that  State  can  be 
no  other  than  the  Church  that  God   Himself  has  ^ 
founded,  and  all  temporal  lordship  can  be  valid  only 
in  so  far  as  it  is  part  and  parcel  of  the  Church.'''- 
Therefore  the  Church,  being  the  one  true  State,  has 
received  by  a  mandate  from  God  the  plenitude  of  all 
spiritual  and  temporal-  powei^,  they  being  integral  parts 


12  Political  Theories  of  the  Middle  Age, 


of  One  Might^°.  '''The  Head  of  this  all-embracing  State 
is  Christ.  But,  as  the  Unity  of  Mankind  is  to  be 
realized  already  in  this  world,  His  celestial  kingship 
must  have  a  terrestrial  presentment".  As  Christ's 
Vice- Regent,  the  earthly  Head  of  the  Church  is  the 
one  and  only  Head  of  all  Mankind. '^'^  The  Pope  is  the 
wielder  of  what  is  in  principle  an  Empire  i^principatus) 
over  the  Community  of  Mortals.  He  is  their  Priest 
and  their  King  ;  their  spiritual  and  temporal  Monarch  ; 
their  Law-giver  and  Judge  in  all  causes  supreme^". 

The  If  the  papal  party  none  the  less  held  fast  the 

\/     temporal  doctrine  that  a  separation  of  Ecclesiastical  and  Tem- 

power.  Powers  was  commanded  by  God,  it  explained 

that  the  principle  of  separation  was  applicable  merely 
to  the  mode  in  which  those  powers  were  to  be  exer- 
cised The  bearer  of  the  supreme  plenitude  of  power 
in  Christendom  is  forbidden  by  divine  law  to  wield  the 
temporal  sword  with  his  own  hand.'''  Only  the  worthier 
portion  of  Ecclesiastical  Might  is  reserved  for  the 
Priesthood,  while  the  worldly  portion  is  committed  to 
less  worthy  hands^^  ^^It  must  be  confessed  therefore 
that  God  has  willed  the  separation  of  the  Regmtm 
from  the  Sacerdotium,  and  therefore  has  willed  the 
existence  of  the  Secular  State  :  the  worldly  magistrature 
is  ordained  of  God^^  Still  it  is  only  by  the  mediation 
of  the  Church  that  the  Temporal  Power  possesses  a 
divine  sanction  and  mandate.  The  State  in  its  con- 
crete form  is  of  earthly  and  not,  like  the  Church,  of 
heavenly  origin.  In  so  far  as  the  State  existed  before 
the  Church  and  exists  outside  the  Church,  it  is  the 
outcome  of  a  human  nature  that  was  impaired  by  the 
Fall  of  Man.  It  was  founded,  under  divine  sufferance, 
by  some  act  of  violence,  or  else  was  extorted  from  God 
for  some  sinful  purpose.  "^^Of  itself  it  has  no  power  to 
raise  itself  above  the  insufficiency  of  a  piece  of  human 


Unity  in  Church  and  State.  13 


handiwork".  In  order  therefore  to  purge  away  the 
stain  of  its  origin  and  to  acquire  the  divine  sanction  as 
a  legitimate  part  of  that  Human  Society  which  God 
has  willed,  the  State  needs  to  be  hallowed  by  the 
authority  of  the  Church.''  In  this  sense  therefore  it  is  ^ 
from  the  Church  that  the  Temporal  Power  receives  its 
true  being,  and  it  is  from  the  Church  that  Kaiser  and 
Kings  receive  their  right  to  rule^'.''^  And  all  along  the 
Temporal  Government  when  it  has  been  constituted 
remains  a  subservient  part  of  the  Ecclesiastical  Order. 
It  is  a  mean  or  instrument  of  the  single  and  eternal 
purpose  of  the  Church.  In  the  last  resort  it  is  an 
Ecclesiastical  Institutional  ^^For  this  reason  all  human 
laws  {leges)  find  their  boundaries  set  and  their  spheres^ 
of  competence  assigned  to  them  by  the  law  spiritual 
(canonesy^ '  For  this  reason  the^  Temporal  Power  is 
subject  to  and  should  obey  the  Spiritual"*^.'  For  this 
reason  'the  offices  of  Kaiser,  King,  and  Prince  are 
ecclesiastical  offices 

From  these  fundamental  principles  flowed  with  The  Pope 
logical  necessity  the  claims  to  Over- Lordship  which  swords, 
the  Pope,  as  bearer  of  the  sovereign  Sacerdotium, 
urged  against  the  Emperor  as  bearer  of  the  Imperiiim, 
and  also  against  all  other  independent  wielders  of 
worldly  might.  That  the  Emperor,  and  likewise  all^ 
other  Rulers,  derive  their  offices  but  mediately  from 
God,  and  immediately  from  the  Church's  Head,  who 
in  this  matter  as  in  other  matters  acts  as  God's  Vice- 
Regent — this  became  the  general  theory  of  the  Church. 
^  It  was  in  this  sense  that  the  allegory  of  the  Two  Swords 
was  expounded  by  the  ecclesiastical  party.  Both 
Swords  have  been  given  by  God  to  Peter  and  through 
him  to  the  Popes,  who  are  to  retain  the  spiritual  sword, 
while  the  temporal  they  deliver  to  others.  This 
delivery,  however,  will  confer,  not  free  ownership,  but 


14  Political  Theories  of  the  Middle  Age, 


the  right  of  an  ecclesiastical  office-holder.    As  before 
the  delivery,  so  afterwards,  the  Pope  has  utrumque 
gladium.     He  has  both  Powers  habitu,  though  only 
the  Spiritual  Power  actu.    The  true  ownership  (domi- 
niicm)  of  both  swords  is  his,  and  what  he  concedes  in 
the  temporal  sword  is  merely  some  right  of  independent 
user,  which  is  characterized  as  usus  immediatus,  or 
perhaps  as  dominium  tUile^^.    In  the  medium  of  feudal 
law  the  papal  right  in  the  Temporal  Power  appears 
^    as  neither  more  nor  less  than  a  feudal  lordship.  The 
Emperor  assumes  the  place  of  the  highest  of  papal 
vassals,  and  the  oath  that  at  his  coronation  he  swears 
to  the  Pope  can  be  regarded  as  a  true  homagitim^K  In 
any  case  the  Emperor  and  every  other  worldly  Ruler 
are  in  duty  bound  to  use  in  the  service  and  under  the 
direction  of  the  Church  the  sword  that  has  been  en- 
trusted to  them*^    It  is  not  merely  that  the  Pope  by 
virtue  of  his  spiritual  sword  may  by  spiritual  means 
supervise,   direct  and  correct  all  acts  of  rulership-^ 
Much  rather  must  we  hold  that,  though  in  the  general 
course  of  affairs  he  ought  to  refrain  from  any  immediate 
intermeddling  with  temporal  matters,  and  to  respect 
the  legitimately  acquired  rights  of  rulers^,  he  is  none 
the  less  entitled  and  bound  to  exercise  a  direct  control 
of  temporalities  whenever  there  is  occasion  and  reason- 
able cause  for  his  intervention  (casiialiter  et  ex  ratio- 
nabili  caitsd)'\    Therefore  for  good  cause  may  he 
withdraw  and  confer  the  Imperium  from  and  upon 
peoples  and  individuals^^ :  and  indeed  it  was  by  his 
plenitude  of  power  that  the  Imperium  was  withdrawn 
from  the  Greeks  and  bestowed  upon  the  Germans 
(translatio  Imperiiy^.     His  is  it  to  set  Kaisers  and 
Kings  over  the  peoples,  and  the  right  so  to  do  he  uses 
whenever  no  other  mode  of  instituting  a  ruler  has 
been  established  or  the  established  mode  has  shown 


Unity  in  Church  and  State.  15 


its  insufficiency^".  In  particular,  if  the  Emperor  is 
chosen  by  the  Prince-Electors,  this  is  a  practice  which 
rests  solely  upon  a  concession  which  the  Pope  has 
made  and  might  for  good  cause  revoke ^\  It  is  he 
that  is  and  remains  the  true  Imperial  Elector.  There- 
fore to  him  pertains  the  examination  and  confirmation 
of  every  election  ;  upon  him  devolves  the  election 
whenever,  according  to  the  rules  of  Canon  Law,  a  case 
of  '  lapse '  occurs  ;  and  it  is  by  his  act  of  unction  and 
coronation  that  the  Emperor  Elect  first  acquires  im- 
perial rights^".  In  case  of  vacancy  or  if  the  ternporal 
Ruler  neglects  his  duties,  the  immediate  guardianship 
of  the  Empire  falls  to  the  Pope^.  And  lastly,  it  is  for 
him  to  judge  and  punish  Emperors  and  Kings,  to  1/ 
receive  complaints  against  them,  to  shield  the  nations 
from  their  tyranny,  to  depose  rulers  who  are  neglectful 
of  their  duties,  and  to  discharge  their  subjects  from  the 
oath  of  fealty  **. 

All  these  claims  appeared  as  logical  consequences  The  Com- 
of  a  legal  principle  ordained  by  God  Himself.    The  Mankmd^ 
subsidiary  arguments  touching  the  Pope's  right  and  sovJ^dgn- 
title,  arguments  derived  from  history  and  positive  law,  Jj^mch^ 
had  no  self-sufficient  validity,  but  were  regarded  as 
mere  outward  attestations  and  examples.  Conversely, 
no  title  founded  on  Positive  Law  could  derogate  from 
the  Divine  Law  of  the  Church.    For  this  reason  what- 
ever was  in  the  first  instance  said  of  the  Emperor's 
subjection  to  the  Pope  could  be  analogically  extended 
to  every  other  temporal  Ruler*\    And  thus  in  fact  was 
derived  immediately  from  the  Itts  Divi^iuin  an  ideal 
Constitution  comprehending  all  Mankind,  a  Consti- 
tution which  by  the  universal   Sovereignty  of  the 
Church  thoroughly  satisfied  the  postulate  of  Unity 
above  Duality. 
^"^Very  rarely  in  the  Middle  Age  were  the  partizans 


1 6  Political  Theories  of  the  Middle  Age. 


to^thT^^^°"  of  the  Secular  State  bold  enough  to  attempt  a  con- 


High  ^  version  of  this  theory  to  the  interest  of  the  Temporal 
theory.  Power,  or  to  deduce  from  the  Principle  of  Unity  a 
Sovereignty  of  the  State  over  the  Church.  '  It  is  true 
that  the  earlier  age  in  which  the  Church  was  more  or 
less  completely  subjected  to  the  Empire  was  never 
wholly  forgotten^.  Yet  was  the  reminiscence  of  it 
seldom  used  except  as  a  purely  defensive  weapon. 
^^Even  Ockham  will  go  no  further  than  the  hypothetical 
assertion  that  if  really  and  truly  there  must  be  just  one 
single  State  comprising  all  Mankind  with  just  one 
single  Head  upon  Earth,  then  this  Head  must  be  the 
Emperor,  and  the  Church  can  be  no  more  than  a  part 
of  his  Realm Lonely  in  the  Middle  Age  was  Mar-  ^ 
silius  of  Padua  when  he  taught  as  a  principle  the 
complete  absorption  of  Church  in  State.  '  He,  like 
others,  deduced  conclusions  from  the  idea  of  Unity  ; 
but  then  with  him  this  idea  assumed  a  thoroughly  un- 
medieval  form.  Already  it  was  transmuting  itself  into 
the  '  antique-modern '  idea  of  an  all-comprehending 
internal  Unity  of  the  State  and  was  proclaiming  in 
advance  those  principles  of  the  State's  Absoluteness 
which  would  only  attain  maturity  in  a  then  distant 
future.  To  this  we  must  return  hereafter. 
The  theory  ^\xi  general  throughout  the  Middle  Age  the  doctrine  \/ 
:  ordinate    of  the  State's  partizans  remained  content  with  the  older 


^  powers 


teaching  of  the  Church  :  namely,  that  Church  and  State 
were  two  Co-ordinate  Powers,  that  the  Two  Swords 
were  potestates  distinctae,  that  Sacerdotium  and  Im- 
peritnn  were  two  independent  spheres  instituted  by 
God  Himself^l"^  This  doctrine  therefore  claimed  for 
the  Temporal  Power  an  inherent  authority  not  derived 
from  ecclesiastical  canons  >^In  century  after  century 
it  fought  a  battle  for  the  principle  that  the  Imperium, 
like  the  Sacerdotiunty  proceeds  immediately  from  God 


Unity  in  Church  and  State.  17 


(imperium  a  Deo),  and  therefore  depends  from  God 
and  not  from  the  Church'  {impermm  non  dependet  ab 
ecclesiaY'.  Now  with  more  and  now  with  less  vigour 
this  doctrine  contested  the  various  claims  that  were 
urged  on  the  Church's  side  against  the  Emperor  and 
Temporal  Power^\  Still  it  conceded  a  like  sovereignty 
and  independence  to  the  Spiritual  Sword,  and  merely 
demanded  that  the  Ecclesiastical  Power  should  confine 
itself  within  the  limit  of  genuinely  spiritual  affairs, 
the  Church  having  been  instituted  and  ordained  by 
God  as  a  purely  Spiritual  Realm"*-.  Nay,  this  theory 
was  almost  always  willing  frankly  to  admit  that,  when 
compared  with  the  State,  the  Church,  having  the 
sublimer  aim,  might  rightly  claim,  not  only  a  high^ 
intrinsic  value,  but  also  a  loftier  external  rank^l 

The  writers,  however,  who  took  the  State's  side  in  Unity  and 
the  debate,  they  also  were  full  of  the  idea  of  the  or-  coordinate 
oranized  Oneness  of  all  Mankind,  and  could  see  in  the^'^''^^^' 

o 

spiritual  and  Temporal  Orders  but  two  sides  of  the 
one  Christian  Commonwealth.  So  in  a  two-fold  wise 
they  endeavoured  to  reduce  the  contending  principles 
to  Unity.  Sometimes  they  held  that  the  external 
Unity  of  the  Universal  Realm  finds  an  adequate 
presentment  in  that  Celestial  Head  in  which  the  Body 
of  Mankind  attains  completion — a  Head  whence  the 
two  Powers  flow  and  whither  they  return  in  con- 
fluence^. Sometimes  they  developed  the  thought  that 
in  the  terrestrial  sphere  an  internal  Unity  of  the  two 
Orders  will  suffice :  such  a  Unity  as  results  from 
internal  connexion  and  mutual  support.  The  Sacer- 
dotium  and  the  Imperium,  each  of  these,  taken  by 
itself  Avas  but  one  vital  Function  of  the  social  Body, 
and  the  fulness  of  Life  w^as  only  attained  by  their 
'harmonious  concord'  and  by  their  mutually  supple- 
menting co-operation  in  the  task  that  is  set  before 


M. 


2 


1 8  Political  Theories  of  the  Middle  Age. 


Mankind^'. ^  Hence  were  drawn,  not  only  the  conclu-  ^ 
sion  that  the  State  must  be  subject  to  the  Church  in 
Spirituals,  and  the  Church  to  the  State  in  Temporals 
but  also  a  remarkable  and  further  reaching  theory 
by  virtue  whereof  each  of  the  two  powers  can  and 
must  in  case  of  necessity  {casitalitei^  and  per  accidens) 
assume,  for  the  weal  of  the  whole  body,  functions  which 
^  in  themselves  are  not  its  proper  functions/'  By  such  a 
'  law  of  necessity '  an  explanation  could  be  given  of 
those  historical  occurrences  which  seemed  to  stand  in 
contradiction  to  a  system  w^hich  severs  the  Two 
Swords,  and  from  such  a  '  law  of  necessity '  political 
consequences  of  a  practical  kind  could  be  deduced. 
Since,  when  there  is  a  vacancy  in  the  office  of  supreme 
temporal  Magistrate,  it  is  for  the  Pope  to  judge  even 
temporal  matters,  the  translatio  imperii,  the  decision  ■ 
of  disputed  elections  to  the  Empire,  nay,  in  some 
circumstances  even  the  deposition  of  a  Kaiser,  might 
perhaps  have  fallen  within  the  Pope's  competence^'. 
But  the  same  legal  principle  required  that  in  case  of 
necessity  the  Temporal  Head  of  Christendom  should 
take  the  Church  under  his  care,  and  either  himself 
decide  ecclesiastical  controversies  or  else  summon  a 
General  Council  to  heal  the  faults  of  the  Church^. 
Unity  Then  when  each  of  these  two  Orders  is  taken  by 

Church     itself  we  once  more  see  the  medieval  Principle  of 
and  State.  Uj^j^y      work  and  constituting  that  Order  as  a  single 
whole. 

Visible  From  it  there  arises  within  the  Church  the  idea  of 

of  the      the  divinely  instituted,  visible  and  external  Unity  of 
Church.  ^        spiritual  Realm.  ^^Throughout  the  whole  Middle 
Age  there  reigned,  almost  without  condition  or  qualifi- 
cation, the  notion  that  the  Oneness  and  Universality 
^    of  the  Church  must  manifest  itself  in  a  unity  of  law, 
constitution  and  supreme  governments^  and  also  the 


Unity  in  Church  and  State,  19 


notion  that  by  rights  the  whole  of  Mankind  belongs  to 
the  Ecclesiastical  Society  that  is  thus  constituted^*^. 
Therefore  it  is  quite  common  to  see  the  Church 
conceived  as  a  'State.''-  That  the  Principle  of  Oneness 
demands  of  necessity  an  external  Unity  was  but  very 
rarely  doubted^\  Very  slowly  was  ground  won  by  ai^ 
reaction  which  protested,  not  merely  against  the  in- 
creasing worldliness  of  the  Church,  but  also  against 
the  whole  idea  of  a  'Spiritual  State.'  It  was  reserved 
for  Wyclif  and  Hus  decisively  to  demand  that  the 
Church  should  be  conceived  in  a  more  inward,  less 
external,  fashion,  as  the  Community  of  the  Predestin- 
ated, and  so  to  prepare  the  way  for  that  German 
Reformation  which  at  this  very  point  broke  thoroughly 
away  from  the  medieval  Idea  of  UnityH" 

Similarly  within  the  mundane  sphere  the  Middle  Unity 

^  ,      ,         ^  of  the 

Age  deduced  from  the   Principle   of  Oneness  the  temporal 
divinely  ordained  necessity  of  a  one  and  only  World-  Imperial- 
State^^.     Theological,  historical  and  juristic  arguments 
were  adduced  to  prove  that  ^the  world-wide  Roman 
Dominion  was  the  final  member  in  that  series  of 
Universal  Monarchies  which  was  foreordained  and 
foretold  by  God,'^'^and  that,  despite  many  appearances  ^ 
to  the  contrary,  this  Roman  Dominion  was  legitimately 
acquired  and  legitimately  administered  even  in  the 
days  of  heathenry Then  this  Dominion  was  hal- 
lowed and  confirmed  by  the  birth,  life  and  death  of 
Christ.  ^  It  was  transferred  for  a  while  to  the  Greeks 
by  Constantine,  but  finally  with  the  approval  of  God 
was  conferred  upon  the  Germans 'I    Therefore  the 
Romano-German  Kaiser,  as  immediate  successor  in 
title  to  the  Caesars,  was  by  divine  and  human  law 
possessed  of  the  Iinperium  Mitndi,  by  virtue  whereof 
all  Peoples  and  Kings  of  the  earth  were  subject  unto 
him'l^'^  Like  the  Roman  Church,  the  Roman  Realm 


20  Political  Theories  of  the  Middle  Age. 


was  indestructible  until  the  time  when  its  downfall 
would  usher  in  the  Judgment  Day^".  Consistent  be- 
lievers in  this  Imperial  Idea  drew  the  further  conclusion 
that  de  iin^e,  as  well  as  de  facto,  this  Monarchy  of 
divine  right  was  indestructible.  Neither  custom  nor 
privilege  could  effect  any  deliverance  from  its  sway 
that  would  have  any  sort  of  legal  validity.  Every 
alienation,  every  partition,  every  other  human  act 
which  diminished  this  Empire,  even  though  the  act 
were  done  by  the  Emperor's  self,  was  de  iure  null  and 
void'*.  For  a  long  while  even  doubters  and  opponents 
would  not  directly  call  in  question  this  Imperial  Idea, 
but  would  only  maintain  the  legal  validity  of  excep- 
tions that  were  based  upon  privilege  or  prescription 
and  there  were  many  who  expressly  asserted  that 
exceptions  of  this  kind  did  not  impugn  the  idea  of  the 
Realm  Universal 
Imperial  Nevertheless,  as  a  matter  of  fact  the  principle  of 
contested^  the  Universal  State  was  assailed  while  as  yet  the 
principle  of  the  Universal  Church  was  not  in  jeopardy. 
^  Especially  in  France,  we  hear  the  doctrine  that  the 
Oneness  of  all  Mankind  need  not  find  expression  in  a 
one  and  only  State,  but  that  on  the  contrary  a  Plurality 
of  States  best  corresponds  to  the  nature  of  man  and  of 
temporal  power  Thus  at  this  point  also  medieval 
theory  develops  modern  ideas,  the  process  of  develop- 
ment being  in  harmony  with  the  growth  of  National 
States  in  the  world  of  fact.'''' 
Theory  of  If,  however,  medieval  thought,  whenever  it  was 
groups,  purely  medieval,  postulated  the  visible  Unity  of  Man- 
kind in  Church  and  Empire,  it  regarded  this  Unity  as 
prevailing  only  up  to  those  limits  within  which  Unity 
is  demanded  by  the  Oneness  of  the  aim  or  object  of 
Mankind.  Therefore  the  Unity  was  neither  absolute 
nor  exclusive,  but  appeared  as  the  vaulted  dome  of  an 


Federal 
istic 

structure. 


Unity  in  Church  and  State,  21 


organically  articulated  structure  of  human  society.  ^*In 
Church  and  Empire  the  Total  Body  is  a  manifold  and 
graduated  system  of  Partial  Bodies,  each  of  which, 
though  itself  a  Whole,  necessarily  demands  connexion 
with  the  larger  Whole It  has  a  final  cause  of  its 
own,  and  consists  of  Parts  which  it  procreates  and 
dominates,  and  which  in  their  turn  are  Wholes  "I  Be- 
tween the  highest  Universality  or  'All-Community' 
and  the  absolute  Unity  of  the  individual  man,  we  find 
a  series  of  intermediating  units,  in  each  of  which 
lesser  and  lower  units  are  comprised  and  combined. 
Medieval  theory  endeavoured  to  establish  a  definite 
scheme  descriptive  of  this  articulation,  and  the  gradu- 
ated hierarchy  of  the  Church  served  as  a  model  for  a 
parallel  system  of  temporal  groups.  When  it  comes  to 
particulars,  there  will  be  differences  between  different 
schemes  ;  but'' it  is  common  to  see  five  organic  groups 
placed  above  the  individual  and  the  family  :  namely 
village,  city,  province,  nation  or  kingdom,  empire  :  but 
sometimes  several  of  these  grades  will  be  regarded  as 
one*^.  ^ 

'  But  as  time  goes  on  we  see  that  just  this  federal-  Federai- 
istic  construction  of  the  Social  Whole  was  more  and  central- 
more  exposed  to  attacks  which  proceeded  from  a  defies? 
centralizing  tendency."^  This  we  may  see  happening 
first  in  the  ecclesiastical  and  then  in  the  temporal 
sphere.    The  '  antique-modern  '  concept  of  the  State- 
Unit  as  an  absolute  and  exclusive  concentration  of  all 
group-life  gradually  took  shape  inside  the  medieval 
doctrine,  and  then,  at  first  unconsciously  but  afterwards 
consciously,  began  to  burst  in  pieces  the  edifice  of 
medieval  thought.    Hereafter  we  shall  return  to  this 
process  of  disintegration ;  for  the  moment  we  will 
continue  to  pursue  the  leading  ideas  of  the  medieval 
publicists. 


22  Political  Theories  of  the  Middle  Age. 


IV.     The  Idea  of  Organization. 
Society  as       Medieval  Thoupfht  proceeded  from  the  idea  of  a 

Organism.     ^  o  ir 

single  Whole.  Therefore  an  organic  construction  of 
Human  Society  was  as  familiar  to  it  as  a  mechanical 
and  atomistic  construction  was  originally  alien.  Under 
the  influence  of  biblical  allegories  and  the  models  set 
by  Greek  and  Roman  writers,  the  comparison  of 
Mankind  at  large  and  every  smaller  group  to  an 
animate  body  was  universally  adopted  and  pressed. 
This  led  at  an  early  time  to  some  anthropomorphic 
conceits  and  fallacies  which  do  not  rise  above  the 
level  of  pictorial  presentment^',  but  also  to  some 
fruitful  thinking  which  had  a  future  before  it^l 
Mankind        jj^         ^j-g^-  place,  Mankind  in  its  Totality  was 

as  one  ir         '  ^  j 

Organism,  conceived  as  an  Organism.  According  to  the  allegory 
that  was  found  in  the  profound  words  of  the  Apostle — 
an  allegory  which  dominated  all  spheres  of  thought — 
Mankind  constituted  a  Mystical  Body,  whereof  the 
Head  was  Christ ''^  It  was  just  from  this  principle 
that  the  theorists  of  the  ecclesiastical  party  deduced 
the  proposition  that  upon  earth  the  Vicar  of  Christ 
represents  the  one  and  only  Head  of  this  Mystical 
Body,  for,  were  the  Emperor  an  additional  Head,  we 
should  have  before  us  a  two-headed  monster,  an  anhnal 
biceps^.  Starting  from  the  same  pictorial  concept,  the 
theorists  of  the  imperial  party  inferred  the  necessity  of 
a  Temporal  Head  of  Christendom*^',  since  there  must 
needs  be  a  separate  Head  for  each  of  those  two 
Organisms  which  together  constitute  the  one  Body'". 
The  ultimate  Unity  of  this  Body,  they  argued,  was 
preserved  by  the  existence  of  its  Heavenly  Head,  for, 
though  it  be  true  that  the  body  mystical,  like  the  body 
natural,  cannot  end  in  two  heads,  still  there  is  exactly 


The  Idea  of  Organization,  23 


this  difference  between  the  two  cases,  namely,  that  in 
the  mystical  body  under  its  one  Supreme  Head  there 
may  be  parts  which  themselves  are  complete  bodies, 
each  with  a  head  of  its  own'\ 

Moreover,  from  of  old,  behind  the  conception  of  The  ' 

Mystic 

Mankind  as  Organism,  lay  the  desire  that  State  and  Body. 
Church  should  complete  each  other  and  unite  with 
each  other  into  a  one  and  only  life.  At  this  point 
ecclesiastical  theorists  could  make  profit  of  the  old 
comparison  which  likens  the  Realm  to  the  body  and 
the  Priesthood  to  the  soul.  A  basis  might  thus  be 
easily  acquired  for  all  their  assertions  touching  the 
subjection  of  State  to  Church''.  Their  opponents 
sometimes  tried  to  substitute  one  picture  for  another'^ 
but  sometimes  were  content  with  resisting  inferences. 
The  latter  course  was  taken,  for  example,  by  Nicholas 
of  Cues  when  he  drew  his  magnificent  portrait  of  Or- 
ganized Mankind.  For  him  the  Ecclesia  is  the  CorptLS 
Mystimni.  Its  Spirit  is  God  and  His  Sacramental 
Dispensation.  Its  Soul  is  the  Priesthood,  and  All  the 
Faithful  are  its  Body.  But  the  Ghostly  Life  and  the 
Corporal  are,  according  to  Nicholas,  separately  consti- 
tuted and  organized  under  the  Unity  of  the  Spirit,  so 
that  there  are  two  Orders  of  Life  with  co-ordinate  and 
equal  rights.  But  as  each  Order  is  merely  a  side  of 
the  great  Organism,  they  must  unite  in  harmonious 
concord,  and  must  permeate  each  other  throughout  the 
whole  and  in  every  part.  As  the  soul,  despite  its 
unity,  operates  in  every  member  as  well  as  in  the  total 
body  (est  tola  in  toto  et  in  qnalibet  parte),  and  has  the 
body  for  its  necessary  correlate,  so  there  should  be 
between  the  Spiritual  and  Temporal  Hierarchies  an 
inseverable  connexion  and  an  unbroken  interaction 
which  must  display  itself  in  every  part  and  also 
throughout  the  whole.    To  every  temporal  member  of 


24  Political  Theories  of  the  Middle  Age. 


this  Body  of  Mankind  corresponds  some  spiritual 
office  which  represents  the  Soul  in  this  member. 
[^Thus  the  Papacy  will  be  Soul  in  the  brain  ;  the 
Patriarchate  will  be  Soul  in  the  ears  and  eyes ;  the 
Archiepiscopate,  Soul  in  the  arms,  the  Episcopate, 
Soul  in  the  fingers,  the  Curacy,  Soul  in  the  feet,  while 
Kaiser,  Kings  and  Dukes,  Markgrafs,  Grafs,  'Rectores' 
and  the  simple  laity  are  the  corresponding  members  of 
the  'corporal  hierarchy '^'] 
Bodies^  ^  Like  Mankind  as  a  whole,  so,  not  only  the  Univer- 
poiitic'  sal  Church  and  the  Universal  Empire,  but  also  every 
Particular  Church  and  every  Particular  State,  and  indeed 
every  permanent  human  group  is  compared  to  a  natural 
body  {corpus  naturale  et  organicitni).  It  is  thought  of 
and  spoken  of  as  a  Mystical  Body.  Contrasting  it 
with  a  Body  Natural,  Engelbert  of  Volkersdorf  [i  250 — 
131 1]  already  uses  the  term  'Body  Moral  and  Politic"'.' 
Anthropo-       At  a  Still  early  time  some  men,  anticipating  modern 

morphisni.  ,  .  .  .  _   .  - 

errors,  spun  out  this  comparison  into  superficial  and 
insipid  detail.  John  of  Salisbury  made  the  first  at- 
tempt to  find  some  member  of  the  natural  body  which 
would  correspond  to  each  portion  of  the  State He 
professedly  relied  upon  an  otherwise  unknown  Epistle 
to  Trajan,  falsely  attributed  to  Plutarch,  but  remarked 
that  he  had  taken  thence  not  his  phrases  but  only  the 
general  idea".  Later  writers  followed  him,  but  with 
many  variations  in  minor  matters  'I  The  most  elabo- 
rate comparison  comes  from  Nicholas  of  Cues,  who  for 
this  purpose  brought  into  play  all  the  medical  know- 
ledge of  his  time 'I 
Deduc-  Still  even  in  the  Middle  Age   there  were  not 

thTfdea  o\  wanting  endeavours  to  employ  the  analogy  of  the 
poHdc^^^   Animated  Body  in  a  less  superficial  manner,  and  in 
such  wise  that  the  idea  of  Organization  would  be  more 

*  In  the  original  this  passage  stands  in  a  footnote. —  Transl. 


The  Idea  of  Organization. 


25 


or  less  liberated  from  its  anthropomorphic  trappings. 
Already  John  of  Salisbury  deduced  thence  the  propo- 
sitions— indisputable  in  themselves — that  a  well  ordered 
Constitution  consists  in  the  proper  apportionment  of 
functions  to  members  and  in  the  apt  condition,  strength 
and  composition  of  each  and  every  member  ; — that  all 
members  must  in  their  functions  supplement  and  sup- 
port each  other,  never  losing  sight  of  the  weal  of  the 
others,  and  feeling  pain  in  the  harm  that  is  done  to 
another; — that  the  true  unitas  of  the  Body  of  the  State 
rests  on  the  just  cohaereiitia  of  the  members  among 
themselves  and  with  their  head^''\  Thomas  Aquinas, 
Alvarius  Pelagius  and  many  others  applied  the  doctrine 
in  its  traditional  and  mystical  vestments  to  the  struc- 
ture and  unity  of  the  Church  Ptolomaeus  of  Lucca 
pursued  the  thought  that  the  life  of  the  State  is  based 
upon  a  harmony  analogous  to  that  harmony  of  organic 
forces  (vires  organicae)  which  obtains  in  the  Body 
Natural,  and  that  in  the  one  case  as  in  the  other  it  is 
Reason,  which,  being  the  ruler  of  all  inferior  forces, 
brings  them  into  correlation  and  perfects  their  unity®-. 
Aegidius  Colonna,  who  constantly  employs  the  picture 
of  the  Body  Natural,  leads  off  with  the  following 
statement  : — '  For  as  we  see  that  the  body  of  an 
animal  consists  of  connected  and  co-ordinated  mem- 
bers, so  every  realm  and  every  group  (cong7^egatio) 
consists  of  divers  persons  connected  and  co-ordinated 
for  some  one  end.'  Consequently  he  distinguishes  the 
'  commutative  justice '  which  regulates  the  relations 
between  the  members  and  furthers  their  equipoise, 
their  reparation  and  their  mutual  influence,  from  the 
'distributive  justice,'  which  proceeding  outwards  from 
some  one  point,  such  as  is  the  heart  in  the  body, 
distributes  and  communicates  in  due  proportion  vital 
force  and  movement  to  the  several  members Engel- 


26  Political  Theories  of  the  Middle  Age, 


bert  of  Volkersdorf  based  his  whole  exposition  of  the 
external  and  internal  goods  of  the  well-ordered  State 
upon  the  supposition  of  a  thorough-going  analogy 
between  State  and  Individual  ;  the  Individual  as  Part 
and  the  State  as  Whole  are  governed  by  like  laws  and 
benefited  by  like  virtues  and  qualities  In  an  original 
and  spirited  fashion  Marsilius  of  Padua,  who  founded 
his  doctrine  of  the  State  upon  the  proposition  '  civitas 
est  velut  animata  seu  animalis  natura  quaedam,'  carried 
out  the  comparison  of  a  well-ordered  State  to  an 
'  animal  bene  dispositum '  :  only  in  the  case  of  the 
animal  the  constitutive  principle  is  mere  natural  force, 
while  in  the  case  of  the  State  it  is  the  force  of  human 
reason,  and  therefore  the  life  of  the  organism  is 
governed  in  the  one  case  by  the  Law  of  Nature  and 
in  the  other  by  the  Law  of  Reason.  So  he  compared 
even  in  detail  the  Reason  which  fashions  the  State 
with  the  Nature  which  shapes  organisms.  In  both 
instances  a  Plurality  of  proportionately  adjusted  Parts 
is  ordered  into  a  Whole  in  such  a  way  that  they 
communicate  to  each  other  and  to  the  Whole  the 
results  of  their  operations  (componitur  ex  quibusdam 
proportionatis  partibus  invicem  ordinatis  suaque  opera 
sibi  mutuo  communicantibus  et  ad  totum).  When  the 
union  is  at  its  best,  when  it  is  optima  dispositio,  the 
consequence  in  the  Body  Natural  is  health,  and  in  the 
State  it  is  trmiqidllitas.  And,  as  in  a  healthy  body 
every  part  is  perfectly  fulfilling  its  own  proper  functions 
(perfecte  facere  operationes  convenientes  naturae  suae), 
so  the  tranqinllitas  of  the  State  results  in  the  perfect 
performance  of  all  functions  by  those  parts  of  the  State 
to  which,  in  accordance  with  Reason  and  constitutional 
allotment,  such  functions  are  respectively  appropriate 
(unaquaeque  suarum  partium  facere  perfecte  opera- 
tiones convenientes  sibi  secundum  rationem  et  suam 


The  Idea  of  Organization,  27 


institutionem)  Ockham,  who  in  many  contexts 
treated  the  State  as  an  organism,  deduced,  in  a 
manner  that  was  his  own,  the  principle  that  in  case  : 
of  need  one  organ  can  supply  the  place  of  another,  and 
so  the  State  may  in  some  cases  exercise  ecclesiastical 
and  the  Church  temporal  functions  ^.  Manifold  em- 
ployment was  found  for  this  analogy  between  State 
and  Body  Natural  by  Dante,  John  of  Paris,  Gerson, 
d'Ailly,  Peter  of  Andlau  and  other  writers  of  the 
fourteenth  and  fifteenth  centuries.  This  mode  of 
thought,  however,  attained  its  most  splendid  develop- 
ment in  Nicholas  of  Cusa's  system  of  Cosmic  Harmony. 
He  endeavours  to  present  to  our  eyes  a  harmonious 
equipoise  between,  on  the  one  hand,  the  separate  vital 
spheres  of  all  the  particular  social  organisms — be  they 
large  or  small — and,  on  the  other  hand,  the  higher  and 
wider  spheres  of  combined  activity  proper  to  those 
superior  organisms  which  the  inferior  engender  by 
their  coalition. 

Then  from  the  fundamental  idea  of  the  Social  Weas  of 

Member- 
Organism,  the  Middle  Age  deduced  a  series  of  other  ship, 

ideas.    In  the  first  place,  the  notion  of  Membership  tiation, 

was  developed  to  portray  the  positions  filled  by  in-  fndfhe"' 

dividual  men  in  the  various  ecclesiastical  and  political 

groups.     It  is  remarked,  on  the  one  side,  that  the 

[Member  is  but  part  of  a  Whole,  that  the  Whole  is 

independent  of  the  changes  in  its  parts,  that  in  case  of 

collision  the  welfare  of  the  Member  must  be  sacrificed 

to  that  of  the  Body  ;  and,  on  the  other  side,  that  the 

Whole  only  lives  and  comes  to  light  in  the  Members, 

that  every  Member  is  of  value  to  the  Whole,  and  that 

even  a  justifiable  amputation  of  a  Member,  however 

insignificant,  is  always  a  regrettable  operation  which 

gives  pain  to  the  Whole       Then  again,  from  the 

notion  of  an  Organism,  whose  being  involves  a  union 


28  Political  Theories  of  the  Middle  Age, 


of  like  with  unlike,  was  derived  the  necessity  of  differ-  ^ 
ences  in  r^nk,  profession  and  estate,  so  that  the 
individuals,  who  were  the  elements  in  ecclesiastical 
and  political  Bodies,  were  conceived,  not  as  arith- 
metically equal  units,  but  as  socially  grouped  and 
differentiated  from  each  other  Moreover,  from  the 
picture  of  the  human  body  was  obtained  the  notion  of 
a  Mediate  Articulation,  by  virtue  whereof  smaller  y 
groups  stood  in  graduated  order  between  the  supreme 
Unit  and  the  Individuals*^.  In  particular,  the  necessity 
of  this  arrangement  was  upheld  against  the  centralizing 
efforts  of  the  Popes  which  tended  to  break  through  the 
organic  structure  of  the  Church^*'.  Furthermore,  the 
constitutional  order  which  combined  the  Parts  into  a 
Whole  w^as  regarded  as  an  Organization  which  imitated 
the  processes  of  Nature.  The  task  therefore  that  was 
set  before  it  was  that  of  so  ordering  the  parts,  that,  as 
Marsilius  of  Padua  says,  every  of  them  might  perfectly 
and  undisturbedly  act  upon  all  the  rest  and  so  form  a 
Whole,  or,  as  Ptolemy  of  Lucca  opines,  the  lower 
forces  should  be  set  in  motion  and  controlled  by  the 
higher,  and  all  by  the  highest  force^\  Naturally  there- 
fore the  idea  of  a  Function  (operatio,  actus,  officittni)  of 
the  Whole  Body^-  seemed  appropriate  to  every  case  of 
social  activity,  and  the  member  which  performs  the 
function  appeared  as  an  Organ Lastly,  from  the 
nature  of  an  Organism  was  inferred  the  absolute 
necessity  of  some  Single  Force,  which  as  sumnmm 
movens,  vivifies,  controls  and  regulates  all  inferior 
forces.  Thus  we  come  to  the  proposition  that  every 
Social  Body  needs  a  Governing  Part  {pm^s  principans) 
which  can  be  pictured  as  its  Head  or  its  Heart  or  its 
Soup'.  Often  from  the  comparison  of  Ruler  to  Head 
the  inference  was  at  once  drawn  that  Nature  demanded 
Monarchy,  since  there  could  be  but  one  head^':  nay, 


The  Idea  of  Organization.  29 


not  unfrequently  the  inference  that,  were  it  not  for 
connexion  with  a  rightful  Head,  the  whole  Body  and 
every  member  thereof  would  be  altogether  lifeless^. 
Other  writers  however  expressly  rejected  these  fal- 
lacies, urging  that,  despite  all  resemblance,  there  are 
differences  between  Natural  Bodies  and  jNIysticaP". 

The  comparison  appears  once  more  when  medieval  Growth 
theory  deals  with  the  Origin  of  ecclesiastical  and  Cieation 
political  groups.  However,  in  accordance  with  its  organ- 
general  view  of  the  Universe,  it  could  not  find  the 
constitutive  principle  of  the  group  in  a  natural  process 
of  Growth,  but  in  every  case  had  recourse  to  the  idea 
of  Creation.  Therefore,  on  the  one  hand,  a  divine 
act  of  Creation  appeared  as  the  ultimate  source  of  all 
social  grouping,  in  such  sort  that  the  divine  influence 
either  (as  was  beyond  doubt  the  case  of  the  Church) 
directly  fashioned  and  animated  the  Mystical  Body,  or 
else  less  directly  effected  the  union  of  Parts  in  Whole 
by  virtue  of  some  natural  and  instinctive  impulse.  On 
the  other  hand,  a  creative  act  performed  by  man  is 
supposed,  more  or  less  explicitly  by  most  of  the 
theorists,  for  to  produce  the  State  in  conformity  with 
the  type  of  organization  which  Nature  supplies  is  in 
their  eyes  the  work  of  human  Reason In  elaborate 
detail  Marsilius  of  Padua  endeavoured  to  explain  how 
the  Reason  which  is  immanent  in  every  Community 
engenders  the  Social  Organism  by  a  conscious  imitation 
of  the  life-making  forces  of  Nature^^. 

Howbeit,  though  at  all  these  points  an  energetic  Theory 
expression  was  found  for  the  thought  that  human  conceive 
groups  are  organic,  nevertheless   medieval  doctrine  and  state 
paused  here  without  attaining  that  ultimate  resting  ^  p^^^^^^. 
place  where  it  would  have  been  able  to  formulate  this 
thought  in  the  terms  of  jurisprudence.    As  in  Antiquity, 
so  also  in  the  Middle  Age,  the  idea  of  Organic  Society 


30  Political  Theories  of  the  Middle  Age, 


failed  to  issue  in  the  legal  idea  of  Personality — the 
single  Personality  of  the  group — and  yet  it  is  only 
when  this  process  has  taken  place  that  the  idea  which 
is  before  us  becomes  of  service  in  legal  science. 
Therefore  it  is  that  medieval  doctrine,  despite  all  the 
analogies  that  it  drew  from  organic  life,  might  indeed 
occasionally  conceal,  but  could  not  permanently  hinder, 
the  progress  of  a  mode  of  thought  which  regards  the 
State  as  a  mechanism  constructed  of  atoms.  Indeed 
that  mode  of  thought  lay  in  the  womb  of  the  medieval 
theory.     But  of  that,  hereafter. 


V.     TJie  Idea  of  Monarchy. 

Medieval  We  must  now  tum  to  that  idea  of  Monarchy  which 
pie  eience  g^^^j-j^^^^  ^  truly  medieval  theory  and  was  intimately 
Monarchy,  connected  with  those  fundamental  notions  which  we 
have  been  portraying.  Through  all  the  work  of 
medieval  publicists  there  runs  a  remarkably  active  drift 
towards  Monarchy  ;  and  here  we  see  a  sharp  contrast 
between  antique  and  medieval  thinking. 
God  as ^  The  Middle  Age  regards  the  Universe  itself  as  a 
single  Realm  and  God  as  its  Monarch.  God  therefore 
is  the  true  Monarch,  the  one  Head  and  motive  prin- 
ciple of  that  ecclesiastical  and  political  society  which 
comprises  all  Mankind  All  earthly  Lordship  is  a 
limited  representation  of  the  divine  Lordship  of  the 
World.  HumanLordship  proceeds  from,  is  controlled 
by,  and  issues  in,  divine  Lordship.  Therefore  as 
permanent  Institutions,  the  ecclesiastical  and  temporal 
'  Powers  that  be '  are  ordained  of  God.  If  at  one 
moment  the  champions  of  the  Church  were  inclined  to 
contest  the  truth  of  this  principle  when  applied  to  the 
temporal  Power,  still,  as  time  went  on,  even  extreme 
partizans  were  once  more  willing  to  concede  the  divine 


The  Idea  of  Monarchy. 


31 


origin — at  least  the  mediately  divine  origin — of  the 
State  while  on  the  immediately  divine  origin  of  the 
State  great  stress  was  laid  by  the  advocates  of  secular 
Government^'".  Furthermore,  the  office  and  authority 
of  every  particular  wielder  of  Lordship  flow  from  God. 
Immediately  or  mediately  He  is  the  lender  of  all 
power,  using  as  His  tools  the  Electors  or  other  con- 
stituents of  the  Ruler.  Immediately  from  God  derives 
the  office  of  His  ecclesiastical  Vicar The  like,  so 
said  imperialists,  is  true  of  the  Kaiser  who  is  God's 
temporal  Vicar  while  their  opponents  here  intro- 
duced the  mediating  action  of  the  Church,  but  just  for 
that  reason  expressly  declared  that  the  imperial  office 
and  all  other  lordships  were  loans  from  God  And 
so  too,  not  only  the  sovereign  right  of  the  independent 
ruler,  but  every  magisterial  function  may  be  mediately 
traced  to  Him,  for  all  powers  that  are  sub-demised  by 
superior  rulers  can  in  the  last  resort  be  regarded 
as  emanations  from  the  divine  Government  of  the 
World 

But  since,  as  already  said,  every  Partial  Whole  Divine 
must  be  like  unto  the  Universal  Whole,  the  Monarchical  Monarchs. 
Constitution  of  ecclesiastical  and  political  groups  needed 
no  further  proof.    Almost  with  one  voice,  the  medieval  ^ 
publicists  declared  a  monarchical  to  be  the  best  form  of 
Constitution.    They  thought  that  they  found,  not  only 
in  the  Universe  at  large,  but  throughout  animate  and 
inanimate  Nature,  a  monarchical  order,  and  thence 
they  drew  the  conclusion  that  this  order  is  the  best 
also  for  Church  and  State.    Attempts  were  made  to 
strengthen  this  conclusion  by  historical  and  practical 
arguments  ;  but  in  the  main  it  rests  on  philosophical 
reasoning  as  to  the  essence  of  all  human  Communities. 
In  this  context  all  arguments  descend  from  the  prin- 
ciple that  the  essence  of  the  Social  Organism  lies  in 


32  Political  Theories  of  the  Middle  Age, 


Unity,  that  this  Unity  must  be  represented  in  a 
Governing  Part,  and  that  this  object  can  be  best 
attained  if  that  Governing  Part  be  in  itself  a  Unit 
(per  se  zmuvi)  and  consequently  a  single  individual 
Dante  gave  yet  deeper  import  and  sharper  form  to  this 
thought  when  he  argued  that  the  unifying  principle  of 
Bodies  Politic  is  Will,  and  that,  for  the  purpose  of 
presenting  a  Unity  of  Wills  {tmitas  in  voluntatibtts) 
the  governing  and  regulating  Will  of  some  one  man 
(voluntas  2tna  et  regzdatrix)  is  plainly  the  aptest 
mean 

Monarchy       From  this  prefcrability  of  Monarchy  it  followed 

in  Church     ,         .        ,        ^i         i         i  .  . 

and  State,  that  m  the  Church,  whose  constitution  was  founded 
directly  by  God,  Monarchical  Government  existed 
ittre  divine,  for  God  could  will  for  His  Church  none 
but  the  best  of  constitutions  ^'^l  In  like  fashion  the 
doctrine  which  taught  that  the  Empire  also  was  willed 
by  God  led  to  the  assertion  of  a  divine  institution  of 
the  Kaiser's  universal  Monarchy"''.  Similarly  in  every 
Body  which  is  a  Member  of  the  Church  or  Empire, 
and  consequently  in  every  human  group,  a  monarchical 
appeared  to  the  Middle  Age  as  the  normal  form  of 
government  The  current  legal  doctrine  of  corpora- 
tions was  wont  either  tacitly  to  assume  that  every 
corporation  would  have, — or  even  expressly  to  assert 
that  it  must  have, — a  monarchical  head. 

Com-  But  here  once  more  a  Q^erm  of  disintegration  was 

parison  of  .  .  T%/r     t  ^i  i  r 

forms  of  introduced  into  Medieval  1  heory  by  the  references 
ment."  that  it  made  to  Antiquity.  Those  who  in  their  proof 
of  the  excellence  of  Monarchy  appealed  to  Aristotle 
would  also  borrow  from  him  the  doctrine  of  Republican 
Constitutions,  their  forms,  conditions,  advantages^l 
But  the  divine  right  of  Monarchy  was  threatened  so 
soon  as  comparisons  of  this  kind  were  instituted.  In 
truth  we  begin  often  to  hear  the  opinion  that  no  one 


Tlie  Idea  of  Monarchy. 


33 


form  of  government  is  more  divine  than  another,  that 
the  advantages  of  Monarchy  are  relative,  not  absolute, 
and  that  there  may  be  times  and  circumstances  in 
which  Republican  Constitutions  would  deserve  prefer- 
ence"'*. In  particular,  whenever  the  Kaiser's  impermm 
imindi  is  disputed,  an  attack  is  made  upon  the  founda- 
tion of  the  medieval  ideal  of  Monarchy,  and  utterance 
may  be  given  even  to  the  opinion  that  the  State  which 
comprehends  all  Mankind  may  perchance  be  conceived 
as  an  ^Aristocracy :  an  Aristocracy  of  Sovereigns 
Even  in  the  ecclesiastical  region  the  divinity  and 
necessity  of  Monarchy  did  not  escape  all  doubts"'. 
And  then  in  the  books  of  the  humanists  we  often 
encounter  an  outspoken  preference  for  antique,  repub- 
lican forms"*'.  Already  in  the  fourteenth  century  there 
were  decisive  assertions  that  the  argttmentimi  zmitatis 
gives  no  unconditional  judgment  for  Monarchy,  since 
the  itnitas  principatus  is  possible  and  necessary  in  a 
Republic In  this  context  it  became  usual  to  repre- 
sent the  ruling  Assembly  of  a  Republic  as  a  composite 
Man,  and,  in  the  antique  manner,  it  could  be  con- 
trasted with  the  mass  of  the  ruled  "^  so  that  the  Mon- 
archical State  and  the  Republican  could  be  brought 
under  one  and  the  same  rubric. 

So  again,  as  regards  the  Monarch's  position  in  the  The 
State  there  was  a  mixture  of  and  a  struggle  between  position, 
medieval  and  antique-modern  thought. 

The  genuinely  medieval  lore  saw  in  every  Lordship 
a  personal  office  derived  from  God.  Despite  all  refer- 
ences to  the  Antique,  what  we  have  here  is  plainly  the 
Germanic  idea  of  Lordship,  but  that  idea  had  received 
a  new  profundity  from  Christianity. 

So  there  was,  on  the  one  hand,  a  tendency  to  exalt  Apotheosis 
the  person  of  the  Ruler.    In  his  own  proper  person  Monarch, 
he  was  thought  of  as  the  wielder  of  an  authority  that 

M.  3 


34  Political  Theories  of  the  Middle  Age, 


came  to  him  from  without  and  from  above.  He  was 
set  over  and  against  that  body  whereof  the  leadership 
had  been  entrusted  to  him.  He  had  a  sphere  of 
powers  which  was  all  his  own.  He  was  raised  above 
and  beyond  the  Community ^'^  The  Universal  Whole 
being  taken  as  type,  the  relation  of  Monarch  to  State 
was  compared  with  that  of  God  to  World.  Nay,  even 
a  quasi-divinity  could  be  ascribed  to  him,  as  to  the 
Vice-Gerent  of  God'-°.  The  lengths  that  the  Pope's 
supporters  could  go  in  this  direction  are  well  known 
and  their  opponents  lagged  not  behind  when  Kaiser 
and  Kings  were  to  be  extolled^", 
rchy       None  the  less,  however,  the  thoupfht  that  Lordship 

fice.    ,  .  . 

is  Office  found  emphatic  utterance.  The  relation- 
ship between  Monarch  and  Community  was  steadily 
conceived  as  a  relationship  which  involved  reciprocal 
Rights  and  Duties.  Both  ^Monarch  and  Community 
were  '  subjects '  of  political  rights  and  duties,  and  it 
was  only  in  the  union  of  the  two  that  the  Organic 
W^hole  consisted.  Moreover,  in  the  Community  all 
the  individuals  stood  in  legal  relationships  to  the 
Monarch  :  relationships  which  properly  deserved  to 
be  called  legal  and  which  were  of  a  bilateral  kind. 
Lordship  therefore  was  never  mere  right ;  primarily 
it  was  duty  ;  it  was  a  divine,  but  for  that  very  reason 
an  all  the  more  onerous,  calling ;  it  was  a  public 
office  ;  a  service  rendered  to  the  whole  body^-l  Rulers 
are  instituted  for  the  sake  of  Peoples,  not  Peoples  for 
the  sake  of  Rulers^-"*.  Therefore  the  power  of  a  Ruler 
is,  not  absolute,  but  limited  by  appointed  bounds. 
His  task  is  to  further  the  common  weal,  peace  and 
justice,  the  utmost  freedom  for  alP-'.  In  every 
breach  of  these  duties  and  every  transgression  of  the 
bounds  that  they  set,  legitimate  Lordship  degenerates 
into  Tyranny^-^    Therefore  the  doctrine  of  the  uncon- 


The  Idea  of  Monarchy. 


35 


clitioned  duty  of  obedience  was  wholly  foreign  to  the  • 
Middle  Age.  Far  rather  every  duty  of  obedience  was 
conditioned  by  the  rightfulness  of  the  command.  That 
every  individual  must  obey  God  rather  than  any 
earthly  superior  appeared  as  an  absolutely  indisputable 
truth ^-'l  If,  however,  already  at  an  early  time,  some 
writers  went  no  further  in  limiting  the  obedience  due 
from  subjects  than  this  point — a  point  to  which  Holy 
Scripture  itself  would  carry  them — and,  in  opposition 
to  the  claims  of  the  Tyrant,  allowed  only  the  right  and 
duty  of  a  martyr's  'passive  resistances^,'  still  the 
purely  medieval  doctrine  went  much  further.  For 
one  thing,  it  taught  that  every  command  which  ex- 
ceeded the  limits  of  the  Ruler's  authority  was  for  his 
subjects  a  mere  nullity  and  obliged  none  to  obedi- 
ence^'l  And  then  again,  it  proclaimed  the  right  of 
resistance,  and  even  armed  resistance,  against  the  com- 
pulsory enforcement  of  any  unrighteous  and  tyrannical 
measure — such  enforcement  being  regarded  as  an  act 
of  bare  violence.  Nay  more,  it  taught  (though  some 
men  with  an  enlightened  sense  of  law  might  always 
deny  this)  that  tyrannicide  is  justifiable  or  at  least 
excusable 

But  alongside  of  this  medieval  idea  of  the  Ruler's  The  idea  of 
Office,  there  appeared  already  in  the  twelfth  century  ty. 
the  germ  of  a  doctrine  of  Sovereignty  which  in  its  ^ 
monarchical  form  exalts  the  one  and  only  Ruler  to  an  * 
absolute  plenitude  of  power.    The  content  of  this 
plenitude  needed  no  explanation,  its  substance  w^as 
inalienable,  impartible  and  proof  against  prescription, 
and  all  subordinate  power  was  a  mere  delegation  from 
it.     However,  during  the  Middle  Age  the  idea  of 
Monarchical  Sovereignty  remained,  even  for  its  boldest 
champions,  bound  up  with  the  idea  of  Office.    Nor  was 
this  all,  for  its  appearance  soon  awakened  a  growing 

3—2 


36  Political  Theories  of  the  Middle  Age. 

opposition,  which,  always  setting  a  stronger  accent 
on  the  rights  of  the  Community,  finally  issued  in  the 
doctrine  of  Popular  Sovereignty. 
Sovereign-  It  was  within  the  Church  that  the  idea  of  Mon-  ^ 
Pope!^^  archical  Omnicompetence  first  began  to  appear.  It 
appeared  in  the  shape  of  2.  plenitiLclo potestatis  attributed 
to  the  Pope^'".  And  yet  just  at  this  point  even  the 
extremest  theories  were  unable  utterly  to  abolish  the 
notion  of  an  Office  instituted  for  the  service  of  the 
Whole  Body  or  to  free  the  supreme  power  from  every 
limitations^'.  Moreover,  in  antagonism  to  this  explica- 
tion of  ecclesiastical  Monarchy,  there  set  in  a  swelling 
movement  which  not  only  denied  to  the  Pope  any 
power  in  temporal  affairs,  but  would  allow  him,  even 
in  spiritual  affairs,  no  more  than  a  potestas  limitata, 
and,  in  so  doing,  laid  emphatic  stress  on  the  official 
character  of  Monarchy^^^  Gradually  also  the  doctrines 
of  Conditioned  Obedience,  of  a  right  of  resistance 
against  Tyranny,  of  a  right  of  revolution  conferred  by 
necessity  were  imported  into  the  domain  of  ecclesias- 
tical polity  S'^^ 

Sovereign-  In  the  temporal  sphere  also  the  idea  of  Monarchy 
Ernperor.  tended  to  assume  an  absolute  form  when  in  the  days  of 
the  Hohenstaufen  the  Jurists  began  to  claim  for  the 
Kaiser  the  plenittido  potestatis  of  a  Roman  Caesar, 
and  soon  the  complete  power  of  an  Emperor  was 
treated  as  the  very  type  of  all  Monarchy.  Still  in  the  ^ 
Middle  Age  absolutistic  theory  invariably  recognized 
that  the  Monarchy  which  it  extolled  to  Sovereignty 
was  subject  to  duties  and  limitations ^'^^j  and  (what  is 
more  important)  there  steadily  survived  an  opposite 
doctrine  which,  holding  fast  the  notion  that  Monarchy 
is  Office,  would  concede  to  the  Emperor  and  other 
princes  only  a  potestas  limitata  and  a  right  conditioned 
by  the  fulfilment  of  duty^^l 


The  Idea  of  Popular  Sovereignty.  37 


The  element  of  Limitation  which  was  thus  imma-  Limitation 
nent  in  the  medieval  idea  of  Monarchy  began  to  receive  archy. 
theoretical  development  in  the  doctrine  of  the  rights  of 
the  Community.  To  this  we  now  must  turn.  Here- 
after we  shall  have  to  observe  that  the  Middle  Age  set 
legal  boundaries  to  State- Power  of  every  sort,  and  it  is 
matter  of  course  that  the  Monarch  is  restricted  within 
these,  even  if  all  the  Powers  of  the  State  are  united  in 
his  person. 


VI.     The  Idea  of  Popular  Sovereignty. 
It  is  a  distinctive  trait  of  medieval  doctrine  that  Deveiop- 

•  1  .  1  .      ,      .  .      ,  .  ment  of 

withm  every  human  group  it  decisively  recognizes  an  the  idea  of 
aboriginal  and  active  Right  of  the  group  taken  as  soverdgn- 
Whole.  As  to  the  quality  and  extent  of  this  Right, 
there  was  strife  among  parties.  For  all  that,  however, 
we  may  also  see  plainly  enough  the  contrast  between 
the  once  prevalent  and  strictly  medieval  conception 
and  that  antique-modern  manner  of  thought  which 
was  steadily  developing  itself.  Clearly  in  the  first 
instance  what  lies  before  us  is  the  Germanic  idea  of  a 
Fellowship  {die  germanische  G  eno  s  sense  haft  side  e).  Just 
as  in  the  actual  life  of  this  age,  within  and  without 
the  groups  constituted  by  lord  and  men,  there  might 
be  found  what  we  may  call  '  fellowshiply'  grouping,  so 
also,  along  with  the  Germanic  idea  of  Lordship,  the 
Germanic  idea  of  Fellowship  forces  its  way  into  the  ^ 
domain  of  learned  theory.  But  antique  elements  were 
at  work  in  this  quarter  also.  In  part  their  introduction 
was  due  to  the  Romano-Canonical  doctrine  of  Corpo- 
rations, whence  the  publicists  were  wont  to  borrow, 
and  in  part  to  the  influence  of  the  Political  Law  and 
Political  Philosophy  of  the  ancient  world.  Gradually 


38  Political  Theories  of  the  Middle  Age. 

they  transmuted  the  medieval  lore  of  the  Right  of 
Communities  until  it  bore  the  form  of  the  modern 
doctrine  of  Popular  Sovereignty.  As,  however,  even 
in  the  Middle  Age  the  thought  of  Popular  Sovereignty 
was  connected  in  manifold  wise  with  the  thouQ^ht  of 
the  Ruler's  Sovereignty,  there  was  here  a  foundation 
on  which  the  most  diverse  constitutional  systems  of  an 
abstract  kind  could  be  erected  :  systems  which  might 
range  from  an  Absolutism  grounded  on  the  alienation 
of  power  by  the  people,  through  Constitutional  Mon- 
archy, to  Popular  Sovereignty  of  the  Republican  sort. 
Popular  I.    It  was  in  the  province  of  Temporal  Power  that 

sovereign-  ,  , 

tyinthe    the  Right  of  the  Community  first  assumed  a  doctrinal* 

State.  r 

lorm. 

The  will  An  ancient  and  generally  entertained  opinions 
people  and  regarded  the  Will  of  the  People  as  the  Source  of 
S^^auire.  Temporal  Power.  A  friendly  meeting  took  place 
between  this  traditional  opinion  and  that  Patristic 
Doctrine  of  the  State  of  Nature  which  the  Church  was 
propagating.  That  doctrine  taught  that  at  one  time 
under  the  Law  of  God  and  the  Law  of  Nature  com- 
munity of  goods,  liberty  and  equality  prevailed  among 
mankind.  It  followed  that  Lordship  made  its  first  ap- 
pearance as  a  consequence  of  the  Fall  of  Man^'".  It 
followed  also  that  the  authority  of  Rulers  was  grounded 
on  human  ordinance.  Then,  during  the  Strife  over 
the  Investitures,  the  Church  could  draw  from  these 
premisses  the  conclusion  that  this  humanly  instituted 
Temporal  Power  must  be  subject  to  that  Priesthood  of 
which  God  Himself  was  the  direct  and  immediate 
Founder.  The  defenders  of  the  State  were  content 
to  resist  this  ecclesiastical  reasoning  without  deserting 
the  old  ground.  In  contrast  to  theories  which  would 
insist  more  or  less  emphatically  on  the  usurpatory  and 
illegitimate  origin  of  Temporal  Lordship;  there  was 


The  Idea  of  Poptilar  Sovereignty.  39 


developed  a  doctrine  which  taught  that  the  State  had 
a  rightful  beginning  in  a  Contract  of  Subjection  to 
which  the  People  was  party^^l  Many  reminiscences 
of  events  in  the  history  of  Germanic  Law  came  to  the 
help  of  this  theory,  as  also  the  contractual  form  which 
agreements  between  Princes  and  Estates  had  given  to 
many  of  those  rights  and  duties  which  fell  within  the 
sphere  of  Public  Law.  Still  it  was  also  supposed  that 
a  successful  appeal  could  be  made  both  to  Holy  Writ, 
which  told  (IL  Reg.,  v.  3)  of  a  contract  made  at 
Hebron  between  David  and  the  People  of  Israel,  and 
also  to  a  principle,  proclaimed  by  the  Jurists,  w^hich 
told  that,  according  to  the  ius  gentmm,  every  free 
People  may  set  a  Superior  over  itself  Then,  on  the 
other  hand,  efforts  were  made  to  demonstrate  that  the 
human  origin  thus  discovered  for  the  State  was  not 
incompatible  with  the  divine  origin  and  divine  right  of 
Monarchy,  since  the  People  was  but  an  instrument  in 
the  hands  of  God"^  and  indeed  received  from  His 
influence  the  spiritual  power  of  engendering  the  Ruler's 
Ofifice^^^ 

The  victory  of  this  manner  of  thinking  was  largely  Conu-o- 
due  to  the  decisive  fact  that  just  in  relation  to  the  very  W\^Lex 
highest  of  all  earthly  Powers,  the  Jurists  could  find  in 
the  Corpus  luris  a  text  which  seemed  expressly  to 
indicate  the  Will  of  the  People  as  the  source  of  Ruler- 
ship.  Ever  since  the  days  of  the  Glossators  [the 
twelfth  century]  the  universally  accepted  doctrine  was 
that  an  act  of  alienation  performed  by  the  People 
in  the  Lex  Regia  was  for  Positive  Law  the  basis  of 
the  modern,  as  well  as  of  the  ancient,  Empire"'. 

For  this  cause  it  was  all  the  easier  to  g^eneralize  Voluntary 

1      1  •    1  r     11  1  /-^  subjection 

this  truth  concernmg  the  highest  of  all  temporal  Com-  the  source 

..  ,  .      .   ,  ,    ,  .     of  rightful 

munities,  until  it  appeared  as  a  principle  grounded  in  power. 
Divine  and  Natural  Law.    Indeed  that  the  legal  title 


40  Political  Theories  of  the  Middle  Age. 


to  all  Rulership  lies  in  the  voluntary  and  contractual 
submission  of  the  Ruled  could  therefore  be  propounded 
as  a  philosophic  axiom True,  that  concrete  cases 
might  demand  the  admission  that  the  Power  of  the 
State  had  its  origin  or  extension  in  violent  conquest  or 
successful  usurpation.    Still  in  such  cases,  so  it  was 
said,  an  ex  post  facto  legitimation  by  the  express  or 
tacit  consent  of  the  People  was  indispensable  if  the 
Ruler  was  to  have  a  good  title  to  Rulership.    It  was 
in  this  wise  that  men  sought  to  explain  the  existence 
de  iure  of  the  Roman  Empire,  notwithstanding  the 
violence  which  had  been  employed  in  its  making,  for 
they  could  say  that  the  requisite  subiectio  vohtntaria 
could  be  found  in  the  tacit  consent  of  the  Nations^^. 
William  of  Ockham  and  Antonius  Rosellus  go  even  as 
far  as  an  express  constitution  of  this  World-Monarchy 
by  the  vote  of  the  majority  of  the  Nations,  and  they 
refer  to  the  doctrine  of  Corporations  to  prove  that  in 
such  a  case  the  vote  of  the  majority  is  conclusive, 
since,  on  the  one  hand,  the  whole  of  Mankind,  if  regard 
be  had  to  that  original  community  of  goods  which  is 
prescribed  by  the  Law  of  Nature,  may  be  treated  as  a 
single    college  and  corporation  {tmtmi  collegium  et 
corpus),  and,  on  the  other  hand,  the  establishment  of 
the  Universal  Monarchy  was,  in  the  words  of  Ockham, 
an  act  of  necessity,  or  else  in  the  words  of  Rosellus, 
an  act  which  was  done/r^?  bono  cominuni^^^. 
Reversion        If  then  the  Imperium  proceeded  from  the  People, 
to  the^^^   the  inference  might  be  drawn  that  it  would  escheat  or 
People,     i-evert  to  the  People  whenever  no  rightful  Emperor 
existed.    The  Church,  it  is  true,  avoided  this  conclu- 
sion by  the  supposition  that,  since  the  advent  of  Christ, 
the  rights  of  the  People  had  passed  to  Him  and  from 
Him  to  Peter  and  Peter's  successors.    On  the  other 
hand,  the  opponents  of  papal  claims  made  manifold 


The  Idea  of  Popular  Sovereignty.  41 


use  of  the  idea  of  Escheat  or  Reversion.  The  older 
Jurists  were  indeed  so  much  entangled  in  the  network 
of  the  ancient  texts  that  in  their  eyes  the  '  subject '  of 
those  rights  which  they  ascribed  to  the  populus  Roma- 
mis  in  relation  to  the  Imperium  was  the  population  of 
the  town  of  Rome  as  it  existed  in  their  own  day. 
About  the  middle  of  the  twelfth  century  the  followers 
of  Arnold  of  Brescia  made  a  serious  attempt  to  claim 
for  the  city  a  right  to  bestow  the  vacated  Empire^^l 
Leopold  von  Babenberg  was  the  first  forcibly  to  protest 
against  this  identification  of  the  Roman  townsfolk  with 
the  sov^vQign  populus  Roina7itts.  The  Roman  burghers, 
he  says,  have  nowadays  no  more  right  than  has  qtd- 
ctmqtte  alms  populus  Romano  imperio  subiecttLS\  and  when 
rights  of  sovereignty  in  the  Empire  are  in  question,  the 
term  populus  Romanus  must  be  understood  to  mean  the 
whole  People  that  is  subject  to  the  Roman  Impermin^^\ 

A  first  application  of  this  idea  of  the  Escheat  to  the  The  trans- 
People  of  a  forfeited  or  otherwise  vacant  Rulership  the  Em- 
was  made  when  the  opponents  of  the  Popes  had  to  ^"^* 
explain  the  so-called  translatio  imperii',  that  is,  the 
transfer  of  the  Empire  from  the  Greeks  to  the 
Germans.  The  Greek  Emperor,  so  it  was  said,  for- 
feited his  right,  and  thereupon  the  Roman  people  once 
more  acquired  power  to  dispose  of  the  Empire.  There- 
fore the  consensus  poptdi,  which  is  mentioned  on  the 
occasion  of  Charles  the  Great's  coronation,  was  the  true 
act  of  transfer,  and  the  Pope  merely  declared  and 
executed  the  Will  of  the  People'''^  Leopold  von 
Babenberg,  however,  refuses  to  recognize  this  power 
of  the  Roman  citizens,  who  at  that  time,  so  he  says, 
neither  possessed  the  Lordship  of  the  World  nor  repre- 
sented the  People  of  the  World.  So  at  this  point  he 
has  recourse  to  the  authority  of  the  Pope,  who  by 
virtue  of  necessity — necessity  in  fact,  not  necessity  in 


42  Political  Theories  of  the  Middle  Age. 


law — had  to  occupy  the  vacant  seat  of  the  highest  of 

temporal  judges 
Guardian-        In  like  manner  many  writers  claimed  for  the  People 
vacam  ^^^a  guardianship  over  the  Empire  or  the  State,  pending 
Empire.    ^  vacancy  of  the  throne 

Election  of       In  particular,  however,  from  this  same  way  of 

the  Ruler.  ^ 

thmking  was  deduced  the  right  of  every  People  to 
choose  a  new  Head  in  a  case  of  necessity  :  provided 
that  no  mode  of  appointment  by  a  superior  and  no 
strict  right  of  succession  had  been  established.  For  all 
power  was  originally  based  upon  Choice,  and  Divine 
and  Natural  Law  declared  that,  as  a  matter  of  principle, 
it  was  for  the  Whole  Body  of  the  ruled  to  institute  its 
Head^'\  True,  that  by  a  grant  of  Lordship  to  a  whole 
family,  or,  it  may  be,  by  other  means,  an  Hereditary 
Monarchy  might  be  validly  created^'-.  None  the  less, 
the  Elective  Principle  was  preferable,  being  in  fuller 
accord  with  Divine  and  Natural  Law^'l  Therefore  it 
is  that  the  Elective  Principle  prevails  in  the  Empire, 
which  needs  must  have  the  best  of  constitutions,  and  in 
the  Empire  this  principle  has  always  been  observed, 
albeit  under  different  forms^'^  The  People  may  itself 
exercise  the  right  of  Election,  or  may  delegate  that 
right  to  others.  To  such  an  act  of  delegation  the 
opponents  of  the  papal  claims  were  wont  to  trace  the 
rights  of  the  princely  Electors  of  Germany^^',  while  the 
Pope,  so  they  said,  had  acted  in  this  matter  as  one  of 
the  People,  or,  at  the  most,  as  the  People's  mandatory 
Also  it  was  argued  that,  as  the  electing  Princes  per- 
formed the  election  as  representatives  of  the  whole 
People  of  the  Realm,  their  act  had  all  the  effect  of  an 
election  directly  made  by  the  People,  and,  without  any 
co-operation  on  the  part  of  the  Pope,  immediately  con- 
ferred upon  the  Elect  the  full  rights  of  an  Emperor'". 
Then  as  to  the  rights  that  the  Community  could 


The  Idea  of  Popular  Sovereignty.  43 


assert  against  its  Ruler  when  once  he  had  been  legiti-  Reiationof 
mately  instituted,  there  were  wide  differences  of  opinion.  People. 
The  conflict  of  theories  appears  already  in  all  its  sharp- 
ness so  soon  as  the  Glossators  have  begun  to  controvert 
each  other  over  that  translatio  imperii  from  populus  to 
princeps,  which  was  mentioned  in  the  classical  text. 
Some  of  them  declared  that  there  had  been  a  definitive 
alienation,  whereby  the  People  renounced  its  power  for 
good  and  all,  and  that  therefore  the  People,  when  once 
subjected  to  the  Emperor,  had  no  legislative  power  and 
could  never  resume  what  it  had  alienated Others 
saw  the  translatio  as  a  mere  concessio,  whereby  an  office 
and  a  ustcs  (right  of  user)  were  conveyed,  while  the 
substance  of  the  Imperitim  still  remained  in  the  Roman 
People.  Thence  they  argued  that  the  People  is  above 
the  Emperor  i^popiUus  maior  imperatore),  can  at  the 
present  day  make  laws,  and  is  entitled  to  resume  the 
imperial  power^'l  The  controversy  that  was  thus  begun 
within  the  field  of  Roman  law,  extended  itself,  until  in  a 
more  general  fashion  the  relation  between  Prince  and 
People  was  brought  into  debate.  Out  of  the  debate 
there  issued  diametrically  opposite  systems. 

For  those  who  adopted  the  first  of  these  explana-  The 
tions  of  the  translatio  [that,  namely,  which  told  of  '  an  Ruk^^s^ 
out  and  out  conveyance ']  it  was  easy  to  erect  a  s)'stem  ^"'^^'^^'^^S"- 
of  Absolute  Monarchy  upon  the  original  Sovereignty 
of  the  People.    In  this  sense  even  the  Hohenstaufen 
could  acknowledge  the  derivation  of  Lordship  from  the 
Popular  WilP^°,  and  in  fact  many  lawyers  were  at  pains 
to  deduce  from  that  Abdication  of  the  People  which 
was  implied  in  the  Institution  of  a  Ruler,  a  Right  of 
the  Monarch  which  should  be  as  absolute  as  they  could 
make  it. 

The 

Still  even  the  advocates  of  '  Ruler's-Sovereignty,'  Sovereign 
when  once  they  had  grounded  this  upon  a  Contract  of  thePeopil 


44  Political  Theories  of  the  Middle  Age, 


Subjection,  were  unable  to  avoid  the  recognition  of 
a  right  against  the  Ruler  which  still  perdured  in  the 
Body  of  the  People.  Even  they  were  compelled  to 
regard  the  legal  relationship  between  Ruler  and  Ruled 
as  being  in  all  respects  a  contractual  relationship 
between  the  Body  of  the  People — which  Body  could 
be  treated  as  a  corporation  [tiniversitas) — and  its  Head, 
so  that  the  People  had  a  strict  right  corresponding  to 
the  duty  incumbent  upon  the  Sovereign.  Furthermore, 
throughout  the  Middle  Age  even  the  partizans  of 
[Monarchy  were  wont  to  concede  to  the  Community  an 
active  right  of  participation  in  the  life  of  the  State. 
Political  Institutions  being  what  they  everywhere  were, 
some  such  concession  was  almost  unavoidable.  There 
was  unanimity  in  the  doctrine  that  the  consent  of  the 
Whole  Community  was  requisite  for  the  validation  of 
any  acts  of  the  Ruler  which  were  prejudicial  to  the 
rights  of  the  Whole,  and  among  such  acts  w^ere. 
reckoned  submission  to  another  lord,  alienation  or 
partition  of  the  lordship,  and  indeed  any  renunciation 
of  the  essential  rights  of  a  lord^".  It  was  just  from 
this  uncontested  principle  that  Leopold  von  Babenb^rg 
concluded  that  any  act  done  by  an  Emperor  which 
could  be  deemed  to  imply  the  recognition  of  the  Pope's 
claim  to  examine  and  confirm  imperial  elections,  or 
which  could  be  deemed  to  have  effected  any  sort  of 
subjection  of  the  Empire  to  the  Church,  was  powerless 
to  alienate  the  rights  of  the  Empire  and  its  Princes  and 
Peoples  without  their  concurrence'-'.  Also  men  ex- 
plained that,  though  as  matter  of  pure  law  this  was 
not  necessary,  still  a  general  custom  required  that  the 
Monarch  should  of  his  own  free  will  bind  himself  not 
to  make  laws  or  do  other  important  acts  of  rulership 
without  the  consent  of  the  Whole  Body  or  its  repre- 
sentativesXot    unfrequently    the    opinion  was 


The  Idea  of  Popular  Sovereignty.  45 


expressed  that  even  the  right  of  deposing  the  Ruler  in 
a  case  of  necessity  could  be  conceded  to  the  People 
without  any  surrender  of  the  maxim  '  Princeps  maior 

Then  there  was  a  mediating^  tendency  which  souo^ht  '^^^ 

^  ^  ^      system  o 

to  combine  the  idea  of  the  Ruler's  Sovereignty  with  Divided 
that  of  the  People's  Sovereignty.  It  co-ordinated  t)^^'^^^ 
Ruler  and  Community  and  ascribed  the  supreme  power 
to  both  of  them  in  union.  Those  who  occupied  this 
position  rejected  Pure  Monarchy  and  held  that  Limited 
Kingship  or  a  mixture  of  Monarchy,  Aristocracy  and 
Democracy  was  the  best  of  Constitutions^*^'. 

On  the  other  hand,  the  second  of  the  two  expla-  The 
nations  proposed  by  the  Glossators  [for  the  classical  Popular 
text  touching  the  Lex  Regia] — namely  the  doctrine 
that  the  People  granted  to  the  Monarch  merely  '  the 
use '  of  supreme  power — issued,  when  it  was  con- 
sistently developed,  in  the  system  of  pure  Popular 
Sovereignty:  a  Sovereignty  that  remained  in  the 
People  despite  the  institution  of  a  Monarch.  True, 
that  even  the  advocates  of  this  system  held  fast  the 
thought — and  the  idea  of  a  Contract  with  the  Ruler 
favoured  it — that  the  relation  between  People  and 
Ruler  was  a  bilateral  legal  relationship,  which  conferred 
upon  the  Ruler  an  independent  right  of  Lordship,  of 
which  he  could  not  be  deprived  so  long  as  he  was  true 
to  his  pact.  However,  no  matter  what  the  form  of 
government,  the  People  was  always  the  true  Sovereign, 
and  this  was  expressly  stated  by  the  maxim  '  Populus 
maior  principe.'  Hence  was  generally  drawn  the 
inference  that  the  Community  still  retained  a  legislative 
power  over  the  Prince  and  a  permanent  control  over 
the  exercise  of  the  rights  of  Rulership^^.  But,  in 
particular,  the  further  inference  was  drawn  that,  if  the 
Ruler  neglected  his  duties,  the  People  might  sit  in 


46  Political  Theories  of  the  Middle  Age. 

judgment  upon  him  and  depose  him  by  right  and 
doom"'".  Just  this  last  consequence  was  very  generally 
drawn,  and  a  peculiar  importance  was  attributed  to  it. 
Here  might  be  found  an  explanation  of  those  cases  in 
which  the  Pope  had,  or  might  seem  to  have,  deposed 
Emperors  and  Kings  and  absolved  Nations  from  the 
duty  of  subjection.  Such  cases  might  be  regarded  as 
legal  precedents  without  any  acknowledgment  of  papal 
power.  The  Pope's  part  in  them  had  been  not  '  consti- 
tutive' but  merely  'declaratory.'  The  authority  had  in  all 
cases  proceeded  from  the  Folk  or  its  representatives^*^l 
Monarchy  When  the  matter  was  regarded  from  this  point  of 
public.  view,  there  could  be  no  deep-set  difference  between 
a  Monarch  and  a  Republican  Magistrate. 

This,  it  is  true,  was  not  always  consciously  per- 
ceived. W e  can  hardly,  for  instance,  assert  that  Leopold 
of  Babenberg's  mode  of  thought  is  republican.  Yet  he 
expressly  teaches  that  the  People  of  the  Empire  is 
maior  ipso  principe,  can  make  laws,  especially  if  there 
be  no  Kaiser  or  if  the  Kaiser  neglect  his  duty,  and 
can  for  sufficient  cause  transfer  the  Empire  from  one 
Folk  to  another  or  depose  the  Emperor.  He  also 
teaches  that  every  particular  People  has  just  the  same 

/rights  against  its  King^'^^ 
Republic-        Decisively  republican,  on  the  other  hand,  is  the  / 
Marsiiiu^s.  system  of  Marsilius  of  Padua.    With  all  the  consist- 
ency of  democratic  Radicalism  it  erects  an  abstract 
scheme  dividing  power  between  the  tmiversitas  civimn 
and  the  pars  principalis :  a  scheme  which  remains  the 
same,  whatever  be  the  form  of  government.  With 
him  the  '  Legislator '  must  be  the  Sovereign  ;  but  the  ^ 
People  is  always  and  necessarily  the  '  Legislator,'  by 
^  the  People  being  meant  the  Whole  Body  or  a  majority 

of  those  citizens  who  are  entitled  to  vote.  This  inalien- 
able  right  is  to  be  exercised  either  in  a  primary 


The  Idea  of  Popular  Sovereignity. 


47 


assembly  of  the  People  or  by  its  elected  representatives. 
Therefore  the  \\^ill  of  the  People  is  the  efficient  cause 
of  the  State.  By  legislation  it  gives  an  articulate  form 
to  the  State,  distributes  offices,  and  binds  the  various 
parts  into  a  whole.  In  the  first  place  it  erects  the 
office  of  Ruler  for  the  dischargee  of  such  business  as 
the  tmiversa  communitas  cannot  itself  undertake.  But 
more  :  the  matter,  as  well  as  the  form,  of  the  Ruler's 
office  proceeds  from  this  Sovereign  Legislator.  The 
wielder  of  Government  is  to  be  appointed,  corrected, 
deposed  by  the  Legislator  ad  comnmne  conf evens.  The 
Ruler  himself  is  only  a  part  [pars  pinncipans)  of  the 
Whole  and  always  remains  inferior  to  the  Whole.  By 
authority  granted  to  him  by  the  Legislator  ^per  aiicto- 
ritatem  a  legislatore  sibi  concessavi)  he  is  the  State's 
secondary  and,  as  it  were,  instrumental  or  executive  part 
(secundaria  quasi  instrnmentalis  seu  exectttiva  pars). 
Therefore  in  all  things  he  is  bound  by  the  laws,  and 
finally,  since  the  incorporate  body  [tmiversitas)  is  to 
act  by  his  agency,  his  government  will  be  at  its  best 
when  it  conforms  most  closely  to  the  Will  of  the 
W^hole  (iuxta  stcbditoj^ztm  suoruin  vohtntatem  et  con- 
sensttm  ^'"). 

An  essentially  different  system  was  developed  by  Cusanus 
Nicolas  of   Cues  in  his  Catholic  Concordance  \  butiarSove- 
none  the  less  decisively  was  it  a  system  of  Popular 
Sovereignty.    In  his  eyes,  all  earthly  power  proceeded, 
like  man  himself,  primarily  from  God  iyp^nricipaliter  a 
Deo)\  but  a  God-inspired  Will  of  the  Community  was 
the  organ  of  this  divine  manifestation.    It  is  just  in  the^ 
voluntary  consent  of  the  Governed  that  a  Government 
displays  its  divine  origin  :  time  divina  censetur,  qnando 
per  co7tcordantiam    conimunem    a    subiectis  exoritur. 
Therefore  all  iurisdictio  and  administratio  are  based 
upon  electio  and  upon  a  freely-willed  transfer  of  power 


48  Political  Theories  of  the  Middle  Age. 


made  by  the  Community  or  its  majority  or  representa- 
tives. There  is  no  rightful  and  holy  species  ciominandi 
that  is  not  founded  per  viam  vohcntariae  siibiectionis  et 
consensics  in  praesidentium  praelationes  concordantiales. 
Only  a  Ruler  who  has  been  thus  appointed  is,  as  bearer 
of  the  Common  Will,  a  public  and  '  common  '  Person 
(tU  sic  constittttusj  qtiasi  in  se  omnitun  voluntateni 
gestans  in  principando,  pitblica  et  commttnis  pei^sona 
ac  pater  singtdoriLin  vocetnr\  and  only  by  recognizing 
himself  to  be  the  creature  of  the  Whole  does  he  be- 
come the  father  of  its  several  members  {dnm  se  qnasi 
omnittni  collective  subiectomm  sibi  creaturam  cognoscat, 
singidornm  pater  existat).  The  function  of  making 
laws  is  by  its  very  nature  necessarily  reserved  for  the 
Community,  since  all  the  obligatory  force  of  laws 
proceeds  from  the  express  or  silent  consensus  of  those 
who  are  to  be  bound.  Therefore  the  Ruler  also  is 
bound  by  the  laws.  He  only  receives  iurisdictio  and 
adniinistratio  within  the  scope  of  his  mandate.  Even 
in  his  jurisdiction  and  administration  he  is  subject  to 
constant  supervision,  and,  in  case  he  transgresses  the 
limits  of  his  power,  he  may  be  judged  and  deposed 
by  the  People.  And  all  this  is  imprescriptible  and 
inalienable  Right  bestowed  by  the  law  of  God  and 
Nature'''. 

Popular  In  similar  fashion  throughout  the  fifteenth  century 

the  prin-°  in  all  the  theoretical  arguments  by  which  men  strove 
Popular  defend  the  rights  of  '  the  Estates  '  against  the  grow- 
Sovereign-  j^g  might  of  Monarchy,  frequent  recourse  was  had  to 
the  People's  Sovereignty  as  to  a  first  principle until 
that  principle,  assuming  a  popular  form,  penetrated 
more  and  more  deeply  the  masses  of  the  folk,  and  at 
length  took  flesh  and  blood  in  the  revolutions  which 
were  accomplished  or  projected  during  the  Age  of  the 
Reformation. 


The  Idea  of  Popular  Sovereignty.  49 


2.    Meanwhile  thoughts  similar  to  those  which  had  Popular 
been  developed  in  relation  to  the  State  had  exercised  ty  in  the 
a  decisive  influence  within  the  Church.    More  and 
more  distinctly  and  sharply  men  were  conceiving  the  • 
Church  as  '  a  Polity,'  and  it  was  natural  therefore  that 
in  the  construction  of  this  Polity  they  should  employ 
the  scheme  of  categories  which  had  in  the  first  instance 
been  applied  to  the  temporal  State.    Indeed  in  the  end 
the  Church  was  regarded  as  charged  with  the  mission 
of  realizing  the  ideal  of  a  perfect  political  Constitution. 
Thus,  besides  the  transmutation  of  the  specifically 
ecclesiastical  ideals,  we  may  see,  in  this  quarter  also, 
the  well-marked  evolution  of  a  '  nature-rightly  '  Doctrine 
of  the  State. 

A  definition  which   declared  the  Church  to  be  Right  of 

the  eccle- 

'  the  Congregation  of  the  Faithful '  was  not  to  be  eradi-  siasticai 
cated,  and  therefore  the  doctrine  of  absolute  monarchy,  mi^nlty. 
even  when  at  its  zenith,  was  powerless  utterly  to 
eliminate  the  idea  of  a  right  vested  in  the  ecclesiastical 
Community  taken  as  a  Whole.  However  loud  might 
be  the  tone  in  which  men  asserted  that  the  Pope  stood 
above  the  rest  of  the  Church,  had  no  '  Superior,'  and 
therefore  could  judge  all  and  be  judged  of  none  [sedes 
apostolic  a  omnes  iudicat  et  a  nemine  iitdicatur) :  that 
the  Senate  of  Cardinals,  which  was  always  more  com- 
pletely supplanting  the  Assembly  of  Bishops,  had 
acquired  all  its  powers  merely  from  the  Pope  and 
not  from  the  Church  :  that  even  a  General  Council 
stood  below  the  Pope,  obtained  from  him  authority  to 
assemble  and  decide,  and  could  neither  bind  him  nor 
confer  authority  upon  him  ^'^ :  none  the  less,  there  were 
two  points  at  which  a  breach  of  these  principles  could 
not  be  avoided  or  could  with  difficulty  be  excused  as 
a  merely  apparent  breach.  For  one  thing,  the  election 
of  a  Pope  was  always  recalling  the  idea  that  when  the  v/ 

M.  4 


50  Political  Theories  of  the  Middle  Age. 


see  was  vacant  the  power  of  the  Pope  reverted  to  the 
Community,  and  that  therefore  the  Cardinals,  as  repre- 
sentatives of  the  Community,  chose  a  new  Monarch  j 
Secondly,  the  doctrine,  hardly  doubted  in  the  Middle 
Age,  that  in  matters  of  faith  only  the  Church  is 
infallible,  and  that  the  Pope  can  err  and  be  deposed 
for  heresy  led  to  the  opinion  expressed  by  many 
canonists  that  in  this  exceptional  case  the  Pope  is  sub- 
jected to  the  judgment  of  the  Whole  Church  {iudicatur 
a  tota  ecclesia,  condemnatur  a  concilio  generali,  iudi- 
cattLT  a  subditis,  ab  inferioribus  acmsari  et  condemnari 
potestY'^.  It  makes  no  practical  difference  if,  in  order 
to  conceal  this  breach  with  the  principle  of  Absolute 
Monarchy,  men  invent  the  fiction  that  an  heretical 
Pope,  being  spiritually  dead,  has  ipso  facto  ceased  to  be 
Pope,  and  that  the  General  Council  has  merely  to 
declare  this  accomplished  fact  in  the  name  of  the 
Church,  of  which  it  has  become  the  sole  representa- 
tive'''. 

Supre-  If  then  in  this  manner  a  certain  Supremacy  of 

Coundh^^  Council  over  Pope  was  still  incidentally  recognized  by 
the  existing  Law  of  Church,  a  theoretical  explanation 
and  justification  of  this  Supremacy  would  soon  be  forth- 
coming. The  doctrine  that  as  a  general  rule  the  Pope 
is  above  the  Universal  Church,  but  in  matters  of  faith 
is  subject  to  it  and  to  the  Council  that  represents  it, 
had  hardly  ever  died  out^'l  But  if  the  divine  character 
of  the  Pope's  right  to  rule  was  compatible  with  his 
subjection,  even  at  a  single  point,  to  the  Church,  then 
it  appeared  possible  that,  without  abandonment  of  the 
old  and  general  principle  of  Papal  Supremacy,  other 
points  might  be  found  at  which,  by  way  of  exception,  a 
right  of  the  Whole  Body  might  be  made  good  against 
its  Head.  As  a  matter  of  fact,  there  soon  were  some 
who  taught  that  the  Conciliar  Jurisdiction  over  the 


The  Idea  of  Popular  Sovereignty.      5 1 


Pope  extended  to  cases  of  notorious  crime,  of  schism 

and  of  other  evils  which  threatened  the  welfare  of  the 

Whole  Church''".    Moreover,  the  legal  doctrine  of  acts 

dictated  by  necessity  was  developed  in  such  a  manner 

as  to  justify  in  urgent  cases  an  extraordinary  procedure 

on  the  part  of  the  Whole  Church  without  the  Pope  and 

against  the  Pope'"^. 

Howbeit,  from  the  beginning  of  the  fourteenth  fy^^f^he^' 

century  an  ever  more   triumphant  doctrine  pressed  ecciesiasti- 

cai  corn- 
forward  towards  a  bolder  statement  of  the  case.     Re-  munity. 

lying  now  on  those  speculative  constructions  of  Society 
which  were  supposed  to  have  the  warrant  of  Natural 
Law,  and  now  upon  the  Positive  Law  touching  Corpo-  ' 
rations,  it  transferred  to  the  Church  that  theory  of 
Popular  Sovereignty  which  had  been  elaborated  for 
the  State,  and  in  the  end  it  declared  in  favour  of  the 
full  Sovereignty  of  the  Universal  Church  as  repre- 
sented by  a  Council. 

Already  John  of  Paris  saw  in  the  Pope  only  the  Council 
corporative  Head  of  the  Community,  related  to  j^-^^^^^P^- 
merely  as  every  prelate  was  related  to  his  own  ecclesi- 
astical corporation,  having  only  such  powers  of  govern- 
ment as  were  necessary  for  the  preservation  of  unity, 
and,  if  he  transgressed  against  the  common  weal,  liable 
to  be  admonished  by  the  Cardinals  and  deposed  by 
a  Council'^'.  But,  at  this  point  also,  Marsilius  of  Padua 
outstripped  all  his  contemporaries.  Contesting  the 
divine  origin  of  the  Primacy,  he  saw  the  Unity  of  the 
Visible  Church  under  its  Invisible  Head  represented 
only  by  a  Council,  while  to  the  Roman  Bishop,  who 
was  to  be  elected,  corrected,  deposed  by  the  Council, 
he  allowed  no  other  functions  than  that  of  requesting 
the  Temporal  Power  to  summon  a  Council,  that  of  pre- 
siding in  it  and  laying  proposals  before  it,  that  of 
recording  and  publishing  its  resolutions,  and  that  of 

4—2 


52  Political  Theories  of  the  Middle  Age. 


threatening  transgressors  with  purely  spiritual  cen- 
sures'^'. And  then  all  the  propositions  which  flowed 
from  the  Sovereignty  of  the  Whole  were  deduced  and 
stated  in  elaborate  detail  by  William  of  Ockham.  They 
were  propositions  which  theretofore  had  only  been 
maintained  in  isolation  from  each  other,  and  it  was  left 
for  the  extremest  champions  of  Councils  against  Popes 
to  raise  them  to  the  level  of  a  practical  programme. 
Ockham  marshalled  all  the  doubts  concerning  the 
divine  origin  of  the  Papal  Primacy  :  doubts  which 
thenceforth  grew  always  louder He  discussed  the 
question  whether  the  Church  can  not  freely  determine 
its  own  Constitution  and  perhaps  wholly  abolish  the 

y monarchical  form^^^  He  explained  the  Election  of 
Popes  as  the  exercise  of  a  right  delegated  to  the 
Cardinals  by  the  Community^*'.  In  no  circumstances 
would  he  concede  to  the  Pope  more  than  a  limited 
power^^",  while  to  a  General  Council  he  ascribed  the 
power  of  binding  him  by  its  resolutions,  of  sitting  in 
judgment  upon  him,  of  deposing  him,  and  of  relin- 
quishing him  to  the  temporal  arm  for  punishment^^'. 
Lastly,  he  maintained  that  in  case  of  necessity  a 
Council  might  assemble  without  papal  summons  and 
by  virtue  of  its  own  inherent  powerT 
Theories  This  doctone  of  the  Sovereignty  of  the  Ecclesias- 
Conciiiai-  tical  Community  had  already  been  fully  developed 
when  the  writers  of  the  great  Conciliar  Age,  though  at 
some  points  they  tempered  it,  erected  it  as  a  system 
and  made  it  an  official  programme  at  Pisa  and  Con- 
stance and  Basel.  For  d'Ailly,  Gerson,  Zabarella, 
Andreas  Randuf,  Dietrich  of  Niem  and  some  of  their 
contemporaries,  the  whole  Constitution  of  the  Church 
was  based  on  the  thought  that  the  plenitude  of  eccle- 
siastical power  was  in  substance  indivisible  and  inalien- 
able, and  was  vested  in  the  Universal  Church  repre- 


The  Idea  of  Popular  Sovereigjtty,  53 


sented  by  the  Council,  while  the  exercise  of  that  power 
belonged  to  the  Pope  and  the  Council  in  common^^''. 
When  the  various  writers  attempted  more  precisely  to 
define  the  relationship  of  Pope  to  Council,  there  were 
many  variances  between  them  ;  but  on  the  whole  they 
are  agreed  in  ascribing  to  the  Pope  the  ordinary  exer- 
cise of  a  supreme  and  monarchical  power  of  govern- 
ment, and  to  the  Council  a  more  aboriginal  and  a  fuller 
power  which  is  to  be  employed  in  regulating,  correct- 
ing, and,  if  need  be,  overruling  the  papal  govern- 
ment^^^  Therefore  in  the  most  important  acts  of 
Rulership  the  co-operation  of  the  Council  was  requi- 
site. The  Council  should  rectify  abuses  of  the  Pope's 
power  and  might  have  to  judge  him,  depose  him  and 
even  inflict  corporal  punishment  upon  him^^\  In  order 
to  exercise  these  powers,  it  might  assemble  itself  and 
constitute  itself  without  the  Pope's  permission  and 
against  his  will,  though  in  the  normal  course  it  should 
be  summoned  by  him'^-.  During  a  vacancy  of  the  see, 
its  suppletive  power  ^potest as  suppLetiva)  put  it  in  the 
place  of  the  missing  Monarch,  and  then  by  itself  or  its 
vicars  i^per  se  ipstcm  vel  per  organum  aliquod  vice 
omnmm)  it  could  exercise  his  rights  of  governments^'. 
In  principle  the  election  of  a  Pope  belonged  to  the 
Council  as  representing  the  Whole  Church,  and  when 
the  Cardinals,  as  was  the  regular  practice,  performed 
this  function,  they  were  but  representatives  of  the 
CounciP*^.  Attempts,  however,  were  often  made  to 
give  to  the  College  of  Cardinals  an  independent  posi- 
tion as  a  third  organ  of  the  Church,  intermediate  be- 
tween Pope  and  Council'-".  Gerson  and  d'Ailly  even 
believed  that  in  this  fashion  the  ideal  of  a  Mixed 
Constitution,  compounded  of  the  three  '  good  polities ' 
of  Aristotle,  could  be  realized  in  the  Church,  since  the 
Pope  stands  for  Monarchy,  the  College  of  Cardinals 


54  Political  Theories  of  the  Middle  Age. 


for  Aristocracy,  and  the  Council  for  Democracy In 
truth,  however,  notwithstanding  apparent  variations, 
we  see  in  the  works  of  all  these  writers  a  full  Sove- 
reignty of  the  Council  as  the  representative  of  the 
Whole  Community.  In  the  last  resort  all  other  eccle- 
siastical powers  appeared  as  mere  delegations  from  the 
Sovereign  Assembly  :  an  Assembly  whose  resolutions 
were  unconditionally  binding  on  the  other  organs  of 
the  Church  :  an  Assembly  which,  in  case  of  collision, 
was  the  sole  representative  of  the  Church  and  indeed 
stood  'above'  the  Pope^*.  The  Law  of  God,  which 
set  bounds  to  every  power,  was,  it  is  true,  a  limit, 
though  it  was  the  only  generally  recognized  limit  of 
the  Council's  omnipotence.  Gerson,  who  accepted  the 
divine  origin  of  the  Monarchical  Constitution  of  the 
Church,  held  therefore  that  the  Papacy,  when  regarded 
as  an  Institution,  was  unassailable  even  by  the  Coun- 
ciP^^  while  other  writers,  who  suppose  a  merely  histo- 
rical origin  for  the  Primacy,  would  allow  the  Council 
to  modify  the  monarchical  regimen  or  even  to  abolish 
itr 

Theory  of  It  is,  however,  Nicolas  of  Cues  who  in  the  most 
many-sided  fashion  carries  out  the  principle  of  Popular 
Sovereignty  in  the  Church^.  For  him  that  principle 
was  an  imprescriptible  rule  of  Divine  and  Natural 
Law  and  he  maintained  a  complete  parallelism  between 
Church  and  State.  The  '  subject '  of  Church-Right 
was  in  his  eyes  the  Whole  Body  which  alone  had 
received  a  mandate  from  God  (i.  c.  12 — 17).  This  was 
true  of  the  Universal  Church  as  well  as  of  the  Particu- 
lar Churches.  In  the  Church  therefore,  as  in  the 
State,  all  superiority  was  founded  on  consent  and 
voluntary  submission  (11.  c.  13 — 14).  True  it  was, 
that  God  co-operated  with  man  in  the  institution  of 
Ecclesiastical  Powers  and  that  all  Ecclesiastical  Power 


The  Idea  of  Popttlar  Sovereignty. 


55 


was  from  God  (ii.  c.  19);  but  it  was  only  the  Grace 
that  was  bestowed  immediately  by  God  ;  the  Coercive 
Force  was  bestowed  by  means  of  a  human  and  volun- 
tary act  of  conveyance  (11.  c.  34),  and  the  divine  right 
of  every  office,  even  of  the  Primacy,  had  no  other 
character  than  that  borne  by  every  Temporal  Magis- 
tracy (i.  c.  16;  II.  c.  13,  34).  The  medium  whereby 
definite  form  was  given  to  that  expression  of  the 
General  Will,  that  communis  consenstts,  which  in  all 
the  various  zones  of  government  was  necessary  for  the 
conveyance  of  power,  was  Election  (11.  c.  14,  18 — 19). 
By  Election  were  ordained  the  overseers  of  the 
smaller  and  larger  governmental  districts,  parsons, 
bishops,  metropolitans,  patriarchs,  who  thenceforth 
represented  the  Communities  of  their  respective  dis- 
tricts, and  who  when  they  assembled  in  Council  stood 
as  a  visible  presentment  of  their  particular  churches 
and  moreover  of  the  Universal  Church  (11.  c.  i,  16 — 
19).  Therefore  the  authority  of  Councils,  whatever 
their  degree,  proceeded,  not  from  their  Heads,  but  from 
'the  common  consent  of  all'  (11.  c.  8,  13).  For  this: 
reason  the  General  Council,  since  it  stood  for  the 
infallible  Church  (11.  c.  3 — 7),  was  above  the  Pope 
(11.  c.  17 — 34)  and  was  not  dependent  on  his  authority 
(11.  c.  25),  could  in  case  of  necessity  assemble  of  its 
own  motion,  and  could  transact  business  without  him 
(11.  c.  2,  8).  By  virtue  of  the  representative  character 
given  by  Election,  Councils  could  exercise  the  power 
of  legislation,  for,  since  all  the  binding  force  of  laws  is 
based  upon  the  concordantia  subiectionalis  eorum  qui 
per  earn  legem  ligantzir,  and  since  therefore  Papal 
Decretals  as  well  as  Provincial  Statutes  had  no  source 
save  this  'common  consent,'  it  followed  that  canonical 
ordinances  of  all  sorts  acquired  their  validity  either  by 
the  tacit  acceptance  that  is  implied  in  usage  or  by  the 


56   Political  Theories  of  the  Middle  Age. 


express  consent  of  the  Community  (ii.  c.  8 — 12).  But 
further,  on  the  Mandate  that  is  impHcit  in  Election 
rested  all  the  jurisdictional  and  administrative  powers 
of  the  several  Prelates.  By  virtue  of  those  powers 
the  Prelates  were  the  Heads  of  the  Communities 
and  the  presidents  of  the  communal  assemblies,  but 
they  were  bound  by  the  resolutions  of  those  assemblies 
and  were  responsible  to  those  assemblies  for  the  due 
exercise  of  entrusted  offices  (11.  c.  2,  13 — 15).  And  no 
other  was  the  case  of  the  Supreme  Head  of  the  Church 
Universal.  He  too  held  his  place  by  Election,  an 
Election  performed  by  the  Cardinals  nomine  totius 
ecclesiae.  And,  albeit  the  Power  of  God  entered  into 
the  act,  authorizing  and  confirming  it,  still  the  Pope 
owed  his  position  to  the  voluntary  submission  of  the 
Church  Universal.  Therefore  his  only  power  consisted 
of  the  'administration  and  jurisdiction '  which  had  been 
conveyed  to  him  (11.  c.  13 — 14,  34).  So  the  Pope  was 
bound  and  confined  by  laws  (11.  c.  9 — 10,  20).  Like  the 
King,  he  was  higher  than  any  one  of  the  People,  but 
of  the  whole  People  he  was  the  servant  (11.  c.  34). 
His  relation  to  the  General  Assembly  was  that  of  a 
Metropolitan  Bishop  to  the  Provincial  Council  (11.  c. 
12)  :  by  it  he  could  be  judged  and  deposed  (11.  c.  17 — 
18).  For  all  this,  however,  Nicholas  of  Cues,  like 
Gerson,  regarded  this  monarchical  culminating-point  as 
an  essential  and  divinely  decreed  part  of  the  Church's 
Constitution  (i.  c.  14).  Also  he  endeavoured,  as  did 
some  others,  to  interpolate  between  the  democratic 
groundwork  and  the  monarchical  head  an  aristocratic 
element,  which  in  the  case  of  the  Universal  Church 
consisted  of  the  Cardinals  regarded  as  provincial 
delegates,  and  in  the  case  of  the  Particular  Churches 
consisted  of  the  Chapters  (11.  c.  15).  Then  he  strove 
to  institute  a  constitutional  link  between  this  Ecclesi- 


The  Idea  of  Popitlar  Sovereignty.  57 


astical  Constitution  and  the  parallel  Constitution  of  the 
Empire.  On  the  one  hand,  the  temporal  rulers  in 
their  several  provinces  and  the  Emperor  in  the  Whole 
Church  were  to  manifest  their  care  for  the  Church  by 
summoning  Councils  and  voting  in  them  (iii.  c.  8 — 

11,  13 — 4),  while,  on  the  other  hand,  the  clergy  were 
to  take  part  in  the  Assemblies  of  the  Empire  and  of 
its  component  territories.  To  these  '  mixed '  assem- 
blies— partly  ecclesiastical  and  partly  temporal — power 
to  deal  with  '  mixed '  affairs  was  to  be  ascribed  (iii.  c. 

12,  25,  35). 

Upon  this  same  notion  of  a  Sovereignty  given  by  Reaction 
Natural  Law  to  the  Community,  Gregory  of  Heim-  R)puiar 
burg,  Almain,  Aeneas  Sylvius  in  his  earlier  days,  and  ^^^ovei-eign- 
some  later  writers  constructed  their  doctrine  of  Eccle- 
siastical Law-*'^  Those  Canonists  also  who  were  friendly 
to  the  Councils  advocated  the  less  extreme  proposi- 
tions of  this  system  and  at  the  same  time  paid  heed 
to  the  Law  of  Corporations-*^-.  Even  the  constitutional 
theory  of  Antonius  Rosellus,  albeit  strongly  monarchi- 
cal and  based  on  Positive  Law,  was  permeated  by  the 
thought  of  a  Popular  Sovereignty  within  the  Church^^ 
Therefore  the  earliest  scientific  reaction  in  favour  of  the 
Papacy,  a  reaction  in  which  Torquemada  was  a  leader, 
began  with  the  negation  of  the  principle  of  Popular 
Sovereignty,  and  indeed  denounced  that  principle  as 
radically  false  and  impossible 


The  constitutional  doctrine  of  the  Church  thus  Rights  of 

the  Lait 
in  the 
Church. 


underwent   violent  disturbances.    Nevertheless    one  inlhe^^^^ 


important  consequence  of  the  principle  of  Popular 
Sovereignty  remained  undrawn  or  but  partially  drawn. 
The  Conciliar  Movement  did  not  bestow  any  active  part 
in  the  affairs  of  the  Church  upon  the  Laity.  At  the 
utmost  the  theorists  would  allow  a  secondary  or  sub- 
ordinate place  to  the  Temporal  Magistrate.    Thus  the 


58  Political  Theories  of  the  Middle  Age. 


exclusive  right  of  the  Clergy  was  not  attacked 
^Indeed  Gerson  held  fast  an  extremely  'institutional' 
idea  of  the  Church  [i.e.  an  idea  that  the  Church  is 
rather  an  Institution  than  a  Fellowship],  for  he  defined 
the  Church  Universal  in  its  active  potency  as  the  sum 
total  of  those  essential  offices  which  have  been  founded 
by  God-°^.  And,  if  upon  the  other  side  the  Consti- 
tution of  the  Church  as  a  Fellowship  was  loudly 
proclaimed  and  all  ecclesiastical  power  was  reposed  in 
the  Congregation  of  the  Faithful,  all  inferences  in 
favour  of  any  active  rights  of  the  Laity  were  excluded 
by  the  supposition  that  every  Congregation  was  per- 
fectly and  absolutely  represented  by  the  Clerical 
Council 

The  Still  even  at  this  point  the  Reformation  was  not 

MagEtrate  wholly  without  medieval  precursors.  The  idea  of  the 
as  repre-  g^j^^j-g^]  PHesthood  of  all  the  Faithful  was  never  quite 
unrepresented,  and  also  there  were  some  who  made 
the  communal  principle  a  foundation  for  the  theoretic 
construction  of  the  Church's  constitution.  What  is 
most  remarkable  in  this  context  is  that  the  theories 
which  went  furthest  in  this  direction  finally  issued  in 
the  introduction  of  the  Temporal  Magistrature  into 
the  Church,  for  instead  of  postulating  an  independent 
organization  of  the  Ecclesiastical  Communes  [parishes 
and  the  like],  men  were  content  to  suppose  that  these 
were  represented  by  the  constituted  political  powers. 

Above  all  others  it  is  Marsilius  in  his  Defensor  ^/ 
Pads  who  pictures  the  Church  as  a  Corporation  of  the 
Faithful  {ttniversitas  fidelittni)  wherein  the  Laity, — for 
in  truth  they  are  Churchmen  (viri  ecclesiastici), — are 
active  members.  Between  Spiritual  and  Temporal  the 
difference  was  not  'personal'  but  'real'  (ii.  c.  2).  The 
Clergy  were  distinguished  from  the  Laity  by  the 
Priesthood.    This,  however,  was  merely  a  peculiar 


sentative 
of  the 
Laity. 


,  Marsilius 
7      and  the 
Laity. 


The  Idea  of  Popular  Sovereignty.  59 


faculty  of  a  spiritual  kind,  and  bestowed  no  external 
coercive  power  and  no  exceptional  right  of  an  admini- 
strative or  jurisdictional  sort  (11.  c.  3 — 10;  iii.  c.  3,  5, 
13 — 14).  Therefore  the  full  powers  entrusted  by  God 
to  the  Community  of  the  Faithful  were  to  be  exercised 
by  a  General  Council  (11.  c.  7,  18,  20,  22),  which  was  to 
be  constituted  by  all  the  Faithful,  including  the  Laity,  or 
their  Deputies  (11.  c.  20  ;  iii.  c.  2).  However,  as  repre- 
sentatives of  the  Body  of  the  Faithful,  the  legislator 
Inunamts  and  th.^ principalis  were  to  act :  in  other  words, 
the  Assembly  of  the  People  and  the  Temporal  Ruler. 
Upon  them,  therefore,  lay  the  duty  of  summoning  the 
Council,  deciding  who  were  its  members,  controlling  and 
closing  its  deliberations,  and  executing  its  resolutions 
by  force  and  punishment  (11.  c.  28,  21 ;  iii.  c.  33). 

Yet  more  extensive  rights  were  challenged  for  the  Ockham 
Laity  by  Ockham.  He  starts  from  the  principle  that.  Laity, 
albeit  the  Canon  Law  would  narrow  the  idea  of  the 
Church  until  it  comprised  only  the  Clergy,  none  the 
less  the  Church  Universal,  being  the  Congregation  of 
the  Faithful,  must,  according  to  Holy  Writ,  embrace 
the  Laity  also  {Dial.  i.  5,  c.  29 — 31).  Thence  he 
argued  in  detail  that,  since  Lifallibility  was  guaranteed 
only  to  the  Church  Universal,  the  true  faith  might 
perish  in  Pope,  Cardinals,  Roman  Church,  the  whole 
Clergy,  all  male  and  indeed  all  reasonable  members  of 
the  Church — for  one  and  all  they  were  but  parts  of  the 
Church — and  yet  might  survive  in  the  rest  of  the 
Church,  perhaps  in  women  and  babes  ^'l  Therefore  even 
the  Laity  might  accuse  an  heretical  Pope,  and  if  they 
had  power  enough,  might  punish  him  [Dial.  i.  5, 
c.  30 — 35).  So  they  could  summon  a  General  Council 
and  themselves  take  part  in  it ;  indeed  (though  the 
Scholar  in  Ockham's  Dialogue  thought  this  a  plain 
absurdity)  even  women  should  be  admitted,  were  there 


6o  Political  Theories  of  the  Middle  Age, 


need  of  them  {Dial.  i.  6,  c.  85).  In  Ockham's  eye  a 
General  Assembly  of  this  sort  was  by  no  means 
impossible.  It  might,  for  example,  be  constructed  in 
such  wise  that  within  some  limited  time  ever)'  Com- 
mune should  elect  certain  delegates,  from  among  whom 
deputies  for  the  Council  should  be  chosen  by  the 
episcopal  Synods  or  temporal  Parliaments.  In  such  a 
Council  the  Universitas  Fidelium  would  in  fact  be 
present  in  the  persons  of  its  representatives,  and  such 
a  Council,  like  the  General  Assembly  of  any  other 
Community  or  Corporation,  would  concentrate  in  itself 
the  power  of  the  Whole  Body  [Dial.  i.  6,  c.  57, 
84,  91  —  too;  Octo  qii.  III.  c.  8).  The  only  spiritual 
rights  and  powers  (iura  spiritualia)  from  which  Ockham 
would  exclude  the  Laity  are  such  as  have  their  origin 
in  07^do  or  Officitim  DivintLm ;  on  the  other  hand,  laymen 
are  capable  of  all  ntra  spiritualia  which  are  concerned 
with  care  for  the  weal  of  the  Church  [propter  coni- 
munem  tUilitatem  ecclesiae).  In  particular,  according 
to  the  iti^s  naturale,  according  to  the  iits  gentium,  and 
perhaps  according  to  the  itts  divinum,  laymen  are 
entitled  to  take  part  in  the  election  of  bishops  and 
popes,  and  are  excluded  merely  by  temporary  ordi- 
nances of  human  origin.  Their  ancient  right  becomes 
valid  once  more  if  there  be  any  defect  in  the  agency 
which  positive  law  has  put  in  their  place.  Thus  in 
case  of  the  heresy,  the  schism  or  the  culpable  delay  of 
the  Cardinals,  the  right  to  elect  a  Roman  bishop  lies, 
as  a  matter  of  principle,  in  the  Romans,  without  dis- 
tinction between  Clergy  and  People,  or  else  it  lies  in 
all  Catholics However,  the  actual  use  of  this  right, 
as  of  other  rights  pertaining  to  the  Whole  Community, 
Ockham  made  over  to  the  Emperor  '  Roman  and 
Catholic,'  who,  as  the  Community's  Christian  Head, 
might  act  vice  oinniu7}i,  in  the  name  of  and  under 


The  Idea  of  Representation.  6i 


a  commission  from  All,  and  more  especially  the 
Romans-^".  And  thus  Ockham,  like  others,  introduces 
the  Temporal  Magistrate,  into  the  Church  as  the  repre- 


To  this  lively  controversy  concerning  the  rights  ^he^^ 
of  Rulers  and  the  rights  of  Communities,  medieval  sentative 
doctrine  owes  the  idea  of  a  State  with  Representative  tution. 
Institutions.  It  was  admitted  on  all  sides  that  the 
main  object  of  Public  Law  must  be  to  decide  upon  the 
Apportionment  of  Power,  and,  this  being  so,  every 
power  of  a  political  kind  appeared  always  more  clearly 
to  bear  the  character  of  the  constitutional  competence 
of  some  part  of  the  Body  Politic  to  '  represent '  the 
Whole.  It  became  evident  therefore  that  a  theoretical 
severance  must  be  maintained  between  the  individual 
personality  and  the  social  personality  of  every  human 
wielder  of  power,  between  his  own  right  and  his 
public  right,  between  the  private  act  which  affected 
only  the  individual  and  the  official  act  which  by 
virtue  of  the  Constitution  bound  the  Whole  Body"^. 
At  all  these  points  the  Doctrine  of  the  State  co- 
incided with  the  Doctrine  of  the  Corporation,  and 
therefore  in  this  quarter  the  Publicist  had  often  no 
more  to  do  than  simply  to  borrow  the  notions  which 
had  been  elaborated  by  the  Jurists  in  their  theory  of 
Corporations. 

In  the  first  place,  medieval  doctrine  gave  to  the  Repre- 
Monarch  a  representative  character.     However  highly  character 
his  powers  might  be  extolled,  the  thought  that  Lord-  aLhy°^' 


II.     The  Idea  of  Representation. 


*  In  other,  and  to  Englishmen  more  familiar,  words,  '  private  capacity  '  and 
'  politic  capacity  '  were  to  be  distinguished.  —  Transl. 


62  Political  Theories  of  the  Middle  Age, 


ship  is  Office  had,  as  we  have  already  seen,  always 
remained  a  living  thought.  Pope  and  Emperor  stood 
for  this  purpose  on  a  level  with  any  president  of  a 
corporation.  Therefore,  though  it  was  conceded  on  all 
hands  that  the  Ruler  might  have  a  vested  right,  and  a 
right  that  was  all  his  own,  in  his  Lordship,  still  with 
equal  unanimity  men  saw  as  the  content  of  this  right 
merely  a  call  to  the  temporary  assumption  of  an  im- 
mortal dignitas,  and  in  the  concept  of  that  dignitas  the 
function  of  the  Ruler  was  objectified  as  a  constitution- 
ally defined  sphere  of  power 
Politic  So  it  was  as  the  bearer  for  the  time  being  of  a 

capacity.  ^^-^^^sv^ViX,  dignity,  and  not  as  this  or  that  individual, 
that  the  Monarch  was  to  exercise  the  rights  and  dis- 
charge the  duties  of  Lordship.  And  within  the  scope 
of  the  powers  constitutionally  assigned  to  him,  he,  as 
Head,  represented  the  Whole  Body.  Therefore  it  was 
generally  agreed  in  the  Church  that,  as  the  Prelate  is 
not  the  Particular  Church,  so  the  Pope  is  not  the 
Universal  Church,  but  merely  represents  it  by  virtue 
of  his  rank  {intidtit  dignitatis)'^^ .  The  only  question 
for  dispute  was  whether,  as  a  general  rule,  he  by 
himself  represented  the  Whole  Body-^^  or  whether  (as 
was  the  case  of  the  president  of  a  Particular  Church) 
his  representative  power  was  confined  within  certain 
limits,  while  for  a  complete  representation  men  must 
look  to  a  Council"^'.  So  again,  notwithstanding  all 
disputes  touching  the  extent  of  a  Monarch's  power,  all 
were  agreed  that  the  Emperor  was  not  the  Empire, 
but  only,  by  virtue  of  his  rank,  represented  the  Empire 
and  the  Community  that  was  subject  to  him'''.  The 

*  Thus,  for  example,  in  our  English  legal  doctrine,  lordships,  dignities,  offices, 
were  'objectified'  as  'incorporeal  things,'  or  incorporeal  '  objects'  of  rights,  and 
these  things  were  supposed  to  endure  while  their  possessors  came  and  went.  In 
such  '  things '  men  might  have  vested  rights,  but  the  things  themselves  were  con- 
ceived as  constitutionally  allotted  portions  of  public  power. —  Transl. 


The  Idea  of  Representation,  63 


like  was  the  case  of  every  Ruler,  whether  elective  or 
hereditary-^".  This  being  so,  endeavours  were  made 
with  increasing  success  to  formulate  in  theory  and 
effect  in  practice  a  distinction  between  the  public  and 
private  capacities  of  the  Monarch between  his  private 
property  and  the  State's  property  which  was  under  his 
care"^^  between  those  private  acts  of  his  which  only 
affected  him  as  an  individual  and  those  acts  of  govern- 
ment which  would  bind  his  successors^"".  In  this 
instance  the  Church  might  serve  as  a  model  for  the 
Empire  and  the  State,  for  within  the  Church  distinc- 
tions of  this  kind  had  long  been  observed. 

Then,  on  the  other  hand,  it  became  apparent  that  Represen- 
the  powers  ascribed  to  the  Community  of  the  People  Assem- 
were  not  the  private  rights  of  a  sum  of  individuals,  but 
the  public  right  of  a  constitutionally  compounded 
Assembly.  Even  the  advocates  of  an  inalienable 
Sovereignty  of  the  People  did  not  identify  the  Whole 
with  the  mere  Body  of  the  State,  for  beside  the  Body 
there  was  a  Head  with  rights  of  its  own.  They 
declared  at  the  outset  that  in  all  cases  it  was  'collec- 
tively' and  not  'distributively '  that  the  Community  was 
entitled  to  exercise  supreme  power"\  Therefore  a  line 
was  to  be  drawn  between  the  individual  and  the  social 
capacities  of  men""-.  It  was  not  the  individual  man  as 
such,  but  the  fully  qualified  citizen,  the  'active  burgher,' 
as  distinguished  from  mere  'passive  burghers,'  who 
was  entitled  to  participate  in  the  powers  that  were 
ascribed  to  the  Community-^  Even  those  citizens 
who  could  vote  were  thought  of,  not  as  an  undifferenti- 
ated mass,  but  as  an  articulated  whole,  whose  compo- 
sition was  affected  by  differences  of  rank,  of  profession 
and  of  office""^''.  The  exercise  of  the  Popular  Sove- 
reignty or  of  any  other  right  of  the  Community  was 
possible  only  in  a  properly  constituted  Assembly,  and 


64  Political  Theories  of  the  Middle  Age, 


if  and  when  all  formalities  had  been  duly  observed"'. 
In  this  context  the  rules  of  the  Common  Law  touching- 
the  resolutions  of  Corporations  were  bodily  transferred 
to  Ecclesiastical  and  Political  Assemblies.  In  par- 
ticular, during  the  Conciliar  Age  when  questions  of 
ecclesiastical  polity  were  under  discussion — questions 
about  the  summons  to  councils""',  their  power  of  passing 
resolutions"--',  the  rights  of  majorities-^,  the  mode  of 
reckoning  a  majority"-^ — the  rules  of  Corporation  Law 
were  called  into  play.  So  also  its  rules  concerning  the 
prevalence  of  the  majority  were  applied  to  acts  of 
Political  Bodies,  and  it  was  in  the  very  words  of  the 
Jurists  that  the  majority's  power  to  represent  the 
Whole  was  stated^*'.  Ockham  even  went  so  far  as  to 
transfer  the  lore  of  corporate  delict  [the  torts  of  corpo- 
rations] to  the  relation  between  Political  Communities 
and  that  State  which  comprises  all  Mankind,  in  such 
wise  that  by  a  formal  sentence  of  the  Corporation  of 
All  Mortal  Men  {universitas  viortaliiLin)  a  guilty 
Nation  might  be  deprived  of  any  preeminence  that  it 
had  enjoyed  and  indeed  of  all  part  and  lot  in  the  ruler- 
ship  of  the  World-Community'^'. 
Repre-  But,  more  particularly,  to  the  Law  of  Corporations 

anTre|re-  ^e  may  trace  the  endeavour  to  give  definite  legal  shape 
A^em-        ^^^^  ^^^^  exercise  of  the  rights  of  the  People 

blies.  ^  Representative  Assembly  which  had  long  been 

current  in  the  Middle  Age,  though  unknown  to 
Antiquity.  Whenever  to  the  right  of  the  Ruler  there 
was  opposed  a  right  of  the  Community — were  this 
right  superior  to  his  or  were  it  subordinate — the  possi- 
bility that  the  right  of  the  Community  would  be 
exercised  by  means  of  an  Assembly  of  Representatives 
was  admitted.  Indeed  in  all  cases  in  which  either 
a  gathering  of  the  whole  people  was  out  of  the  ques- 
tion, owing  to  the  size  of  the  Community,  or  the 


The  Idea  of  Representation. 


65 


business  in  hand  was  not  suited  to  a  General  Assembly, 
representative  action  appeared  not  only  as  a  possibility 
but  as  a  necessity.  When  put  into  a  precise  form,  the 
idea  was  that  the  Representative  Assembly  stood  in 
the  stead  of  a  Represented  Assembly  of  All,  so  that 
the  acts  of  the  Representing  had  exactly  the  same  legal 
effect  as  the  same  acts  of  the  Represented  Assembly 
would  have  had.  Within  the  ecclesiastical  sphere  it 
was  on  this  principle  that  men  based  the  action  of 
Councils,  and  especially  it  was  from  this  principle  that 
were  deduced  the  claims  which  were  asserted  on  behalf 
of  a  General  Council.  Such  a  Council,  it  was  said, 
represented  in  a  perfect  and  all-sufficing  manner  the 
Community  of  all  the  members  of  the  Church,  in  which 
Community  were  vested  those  rights  that  the  Council 
exercised"'-.  A  prevailing  opinion  attributed  to  this 
representation  a  character  so  perfect  that  we  might  call 
it  '  absorptive,'  so  that,  though  there  might  be  a  distinc- 
tion in  idea,  there  was  no  distinction  in  power  between 
the  Council  and  the  Universal  Church  or  Congregation 
of  the  Faithful.  On  the  other  hand,  an  opinion  which 
Ockham  stated  argued  conversely  that  because  the 
Council's  position  was  purely  representative,  some  limit 
must  be  set  to  its  power  in  relation  to  the  congregatio 
Jideliitni^\  Then  when  the  representative  character  of 
the  Council  was  to  be  explained,  it  was  usual  to  refer 
to  the  fact  that  it  was  composed  out  of  the  elected 
Heads  of  the  various  ecclesiastical  Communities.  Each 
of  these  prelates  might  be  supposed  to  have  received  at 
his  election  a  mandate  to  represent  the  Community 
that  was  subject  to  him^.  In  Ockham's  works  we  may 
see  even  the  idea  of  a  General  Assembly  of  Deputies 
elected,  not  without  the  participation  of  the  Laity, 
to  represent  all  and  singular  the  ecclesiastical  com- 
munes*"^. 


M. 


5 


66  Political  Theories  of  the  Middle  Age. 


Repre- 
sentation 
and  Elec- 
tion. 


Repre- 
sentative 
character 
of  Car- 
dinals and 
Electors. 


In  exactly  the  same  fashion  the  various  Assemblies 
of  Estates  of  lareer  or  smaller  territories  were  res^arded 
as  Representations  of  the  People  empowered  to  exer- 
cise the  People's  Rights-'^''.  In  this  case  also  the 
representative  character  was  supposed  to  be  derived 
from  the  mandate  given  by  Election  :  an  Election 
which  every  section  of  the  People  had  made  of  its 
own  Rulers,  but  an  Election  which  perhaps  had  con- 
ferred an  hereditary  right  upon  some  race  or  some 
house^'^".  On  such  foundations  as  these  Nicholas  of 
Cues  erected  a  formal  system  of  Representative  Parlia- 
mentarism. It  is  true  that  in  this  early  specimen  of 
that  system  we  see  no  mechanically  planned  electoral 
districts,  and  the  constituencies  are  organic  and  corpora- 
tively  constructed  limbs  of  an  articulated  People  ;  still 
the  Assembly  stands  for  the  Whole  People  in  ttno 
coinpendio  repracsentativo'^ .  In  a  similar  sense,  at  an 
yet  earlier  time,  Marsilius  of  Padua  had  declared 
in  favour  of  an  elective  representation  of  the  People, 
but,  in  his  consistent  Radicalism,  reserved  the  exercise 
of  the  rights  of  Sovereignty,  properly  so  called,  for  a 
primary  or  immediate  Assembly-^l 

Then  a  representative  function  of  a  more  limited 
kind  was  ascribed  to  the  small  collegiate  bodies  which, 
with  certain  powers  of  their  own,  stood  beside  the 
Monarchical  Head  :  for  instance,  the  Electors  in  the 
Empire  and  the  Cardinals  in  the  Church.  Leopold 
von  Babenberg  was  the  first  to  ascribe — but  in  this  he 
had  many  followers — the  peculiar  rights  of  the  Electors, 
and  more  especially  that  of  choosing  a  Kaiser,  to  a 
representation  by  them  of  the  whole  Folk  of  the 
Empire  :  a  right  belonging  to  the  People  was  exercised 
by  its  representatives-"^*.  So  likewise  the  Cardinals, 
when  they  chose  a  Pope  or  participated  in  other  acts  of 
Sovereignty,  were  looked  upon  as  representatives  of 


The  Idea  of  Representation.  67 


the  ecclesiastical  Community"^\  It  is  in  just  this  con- 
text that  we  see  the  first  development  of  the  principle 
that  every  set  of  men  which  is  a  representation  of  an 
tmiversitas  (corporation)  must  itself  be  treated  as  an 
universitas.  The  surrogate  or  substitute,  so  men 
arofued,  takes  the  nature  of  that  for  which  it  stands. 
Therefore  Representatives,  who  in  the  first  instance 
are  charged  with  the  representation  of  the  several 
particular  communities  which  compose  a  People,  must,  if 
they  are  to  represent  the  People  as  a  Whole,  act  as 
one  single  Assembly  which  resolves  and  decides  in 
a  corporate  fashion,  and,  in  the  absence  of  any  special 
provisions  for  its  procedure,  ought  to  observe  the  rules 
of  the  Common  Law  of  Corporations.  It  was  on  this 
ground  that  Imperialistic  Publicists,  from  the  days  of 
Leopold  von  Babenberg  onward,  defended,  against  the 
contrary  opinion  of  some  Canonists,  the  thesis  that  the 
rules  of  Corporation  Law  were  applicable  to  the  form 
and  the  effect  of  the  choice  of  an  Emperor  by  the 
princely  Electors-"'".  That  those  rules  were  applicable 
to  the  choice  of  a  Pope  and  to  all  other  joint  acts  of  the 
Cardinals  was  indubitable -^l 


VI I  L  The  Idea  of  Personality. 

After  all  that  has  heretofore  been  said,  we  might  Person- 
well  expect  that  the  Political  Theories  of  the  Middle  chm-ch 
Age  would  have  laid  great  stress  on  the  application  to  noftheo- 
Church  and  State  of  the  idea  of  Personality,  and  by  so  [^Jj^^^/.^^ 
doing  would  have  both  enriched  that  idea  and  deepened  ^-'^^ed. 
it.    The  notion  of  the  merely  representative  function 
of  all  the  visible  wielders  of  public  power  would 
naturally  lead  onwards  to  the  notion  of  a  represented 
and  invisible  '  Subject '  of  rights  and  duties.  The 

5—2 


68  Political  Theories  of  the  Middle  Age. 


Doctrine  of  Corporations,  which  was  so  often  cited  in 
this  context,  was  ready  to  supply  the  idea  of  a  Juristic 
Person,  and  a  due  consideration  of  the  nature  of  Church 
and  State  might  have  induced  a  transmutative  process 
which  would  have  turned  the  Persona  Ficta  of  pro- 
fessional jurisprudence  into  the  concept  of  a  really 
existing  Group- Personality  {^Gesaimntpersd'nlichkeit). 
Already  the  Church  was  conceived,  and  so  was  the 
State,  as  an  organic  Whole  which,  despite  its  compo- 
site character,  was  a  single  Being,  and  the  thought 
might  have  occurred  that  the  Personality  of  the  Indi- 
vidual consists  in  a  similar  permanent  Substance  within 
an  Organism. 

Failure  of  Nothing  of  this  sort  happened.  The  professional 
fheorT^  lawyers  of  the  Middle  Age,  it  is  true,  were  already 
operating  with  the  ideal  '  Right-Subjectivity'  of  Church 
and  State,  and  sometimes  their  operations  were  by  no 
means  wanting  in  precision  ;  but  the  instrument  that 
they  were  using  was  merely  their  '  Fictitious  Person,' 
an  instrument  forged  in  the  laboratory  of  Private  Law. 
On  the  other  hand,  the  Publicists,  properly  so  called, 
of  the  Middle  Age  hardly  ever — and  this  is  highly 
remarkable — make  any  direct  use  of  the  idea  of 
Personality  in  their  theoretical  construction  of  the 
Body  Social,  and,  when  they  make  an  indirect  use  of 
it  by  accepting  its  results,  they  become  the  dependent 
followers  of  Legists  and  Canonists.  At  this  point  we 
may  see  the  beginning  of  a  stream  of  tendency  which 
has  not  ceased  to  flow  even  in  oar  own  day.  On  the 
one  part,  the  concept  of  Legal  Personality  was  confined 
always  more  definitely  within  the  boundary  of  Private 
Law  and  became  always  more  arid  and  sterile.  On 
the  other  part,  the  Theory  of  the  State  had  at  its  com- 
mand no  instrument  which  would  enable  it  to  put  into 
legal  terms  the  organic  nature  of  the  State,  and  thus 


The  Idea  of  Personality.  69 


was  driven  to  mechanical  construction  on  a  basis  pro- 
vided by  the  Law  of  Nature. 

We  have  seen  above  that  the  Canonists  reg^arded  J^^-ists  and 

^  the  State  s 

not  only  each  Particular  Church  but  also  the  Church  Person- 
Universal  as  a  corporate  Subject  of  Rights'"',  and  that 
the  Civilians  simply  subsumed  Empire  and  State  under 
the  concept  of  Corporations'"'.  Baldus,  in  particular, 
formulated  with  much  precision  the  thought  of  the 
State's  personality.  Thus  he  explained  that  the  acts  • 
of  a  Government  are  binding  on  its  successors  because 
the  real  Subject  of  the  duty  is  the  State's  Personality. 
The  Commonwealth,  he  said,  can  do  no  act  by  itself, 
but  he  who  rules  the  Commonwealth  acts  in  virtue  of 
the  Commonwealth  and  of  the  office  which  it  has  con- 
ferred upon  him.  Therefore  in  the  King  we  must 
distinguish  the  private  person  and  the  public  person. 
The  person  of  the  King  is  the  organ  and  instrument 
of  an  'intellectual  and  public  person';  and  it  is  this 
intellectual  and  public  person  that  must  be  regarded  as 
the  principal,  for  the  law  pays  more  regard  to  the 
power  of  the  principal  than  to  the  power  of  the  organ. 
So  the  true  subject  of  the  duty  created  by  an  act  of 
the  Government  is  the  represented  Commonwealth 
(ipsa  respiiblica  repraesentata)  which  never  dies,  and 
a  subsequent  Ruler  is  liable  in  its  name""".  However, 
Baldus  is  the  very  man  who  lets  us  see  clearly  that 
he  regards  the  State's  Personality  merely  in  the  light 
of  the  prevalent  *  Fiction  Theory  '  of  the  Corporation. 
This  appears  plainly  from  his  refusal  to  attribute  Will 
to  the  State.  For  this  reason  he  holds  that  jurisdiction 
delegated  by  the  Prince  ceases  at  the  death  of  the 
delegator.  If  Gulielmus  de  Cuneo  has  argued  to  the 
contrary,  urging  that  the  Empire  continues  to  exist 
and  therefore  that  the  delegator  is  not  dead,  he  has 
(so  says  Baldus)  overlooked  the  fact  that  here  we  have 


yo  Political  Theories  of  the  Middle  Age. 


Reasons 
for  the 
failure  to 
grasp  the 
State's 
Person- 
ality. 


The 
State's 
Person- 
ality 
divided. 


to  do,  not  with  the  Empire,  but  with  the  Emperor  ; 
for,  be  it  granted  that  the  Empire  remains  unchanged, 
still  the  Will  which  is  expressed  in  the  act  of  delegation 
is  the  Emperor's,  not  the  Empire's,  for  the  Empire  has 
no  Mind  and  therefore  no  Will,  since  Will  is  mental. 
[Imperizim  -non  habet  animum,  ei^go  non  habet  velle  nec 
nolle,  quia  animi sunt?)  Will  is  matter  of  fact;  and  mere 
matter  of  fact,  as  distinguished  from  matter  of  law, 
we  cannot  thus  transfer  from  Emperor  to  Empire"^'. 

If  therefore  the  Publicists  when  they  had  occasion 
to  employ  the  concept  of  an  ideal  Person  had  only  at 
their  disposal  this  '  Fictitious '  Person  that  the  Jurists 
had  fashioned,  we  may  easily  understand  that,  at  the 
critically  decisive  points  in  the  discussion  of  questions 
touching  the  whereabouts  of  the  State's  Power,  the 
Publicists  altogether  refrained  from  speaking  of  the 
State's  Personality.  The  rights  that  lay  debatable 
between  Ruler  and  Community  were  being  ever  more 
definitely  brought  within  the  growing  idea  of  Sove- 
reignty, and,  this  being  so,  a  merely  Artificial  and 
Fictitious  Person  became  an  ever  less  competent  '  Sub- 
ject '  for  such  rights.  Moreover,  in  the  controversies 
about  the  partition  and  limitations  of  Public  Power 
men  felt  little  need  to  penetrate  beyond  the  visible 
wielders  of  that  Power.  And  above  all,  the  Doctrine 
of  the  State  which  prevailed  in  Classical  Antiquity 
identified  the  State,  when  considered  as  a  Subject  of 
Rights  and  Duties,  with  its  visible  Sovereign,  and  this 
antique  Doctrine  was  becoming  the  starting-point  for 
theorists. 

And  so  it  fell  out  that  even  in  medieval  theory  we 
may  already  see  that  the  single  Personality  of  the 
State  is  torn  asunder  into  two  'Subjects'  corresponding 
respectively  to  the  Ruler  and  the  Assembly  of  the 
People.     Between  them  there  is  a  conflict  as  to  which 


The  Idea  of  Personality.  7 1 


has  the  higher  and  completer  right ;  but  they  are 
thought  of  as  two  distinct  Subjects  each  with  rights  of 
a  contractual  kind  valid  against  the  other  and  with 
duties  of  a  contractual  kind  owed  to  the  other  ;  and  in 
their  connexion  consists  the  Body  Politic. 

In  so  far  as  the  Ruler  was  the  'Subject'  of  the  Ji^he 
State's  power,  the  notion  of  a  personified  Dignitas  Person- 
enabled  men  to  separate,  both  in  the  ecclesiastical  and  ^^^^^* 
in  the  temporal  groups,  the  rights  which  belonged  to 
the  Ruler  as  Ruler  from  those  which  belonged  to  him 
as  an  individual  man""*^.  But  thereby  an  expression  for 
the  Personality  of  the  State  as  a  Whole  had  not  been 
gained,  for  in  the  State  there  was  a  place  also  for  the 
Community  as  distinguished  from  the  Ruler.  Rather 
we  must  say  that  within  the  State  a  separate  Ruler- 
Personality  [such  as  the  English  '  Crown  ']  was  con- 
structed. This  Ruler-Personality  would  outlive  the 
various  Rulers  who  from  time  to  time  were  invested 
with  it ;  it  endured  in  the  shape  of  a  personified  Office. 
However,  in  a  Monarchy,  so  long  as  the  throne  was 
occupied,  this  Personality  was  absorbed  by  the  visible 
occupant  and  in  a  Republic  it  took  body  in  the 
Assembly  which  exercised  the  rights  of  Sovereignty  : 
an  Assembly  which  was  pictured  in  visible  form  as 
a  living  Collective  Ruler-^''. 

And  then  on  the  other  hand,  in  so  far  as  the  Com-  The 

People  s 

munity  was  a  '  Subject '  of  rights,  and  stood  apart  from  Person- 
and  either  above  or  below  the  Ruler,  this  *  Subject '  ^ 
could  not  be  identified  with  the  Whole  organized  and 
unified  Body,  since  the  Head  was  being  left  out  of 
account.  Rather  a  separate  '  Subject '  was  made  of 
'the  People':  a  'Subject'  that  could  be  contrasted 
with  'the  Government'".'    Then  it  is  true  that  the 

Thus  at  a  later  day  King  James  II.  was  conceived  to  have  broken  a  contract 
made  with,  not  the  State,  but  'the  People.' — Transl. 


72  Political  Theories  of  the  Middle  Age, 


People  when  thus  conceived  was  personified  in  the 
guise  of  an  universitas  and  could  be  distinguished  from 
the  individuals  that  were  comprised  within  it"'^ ;  but, 
the  impulse  towards  an  organic  construction  having 
been  repressed,  men  were  steadily  driven  onwards  to  a 
mode  of  thought  which  explained  the  right-possessing 
tmiversitas  to  be  in  the  last  resort  merely  a  sum  of 
individuals,  bound  into  unity  by  Jurisprudence,  and 
differing  only  from  the  plurality  of  its  members  for  the 
time  being  in  that  those  members  were  '  to  be  taken 
collectively'  and  not  '  distributively.'  This  mode  of 
thought  appears  in  a  pregnant  fashion  among  the 
champions  of  the  rights  of  the  Ecclesiastical  Commu- 
nity. They  simply  identify  the  Universal  Church, 
(which  is  by  definition  the  Universitas  Fidelium,)  with 
a  '  collective  '  sum  of  all  faithful  people'-'-.  Torquemada 
therefore  could  attack  the  Conciliar  Theory  at  this 
very  point.  He  undertook  to  prove  that  the  Universal 
Church  as  defined  by*  his  opponents  was  not  even  a 
possibly  competent  wielder  of  the  ecclesiastical  power 
that  w^as  ascribed  to  it.  For,  he  argued,  a  Community 
taken  as  Whole  cannot  have  rights  of  which  the  major 
part  of  its  members  are  incapable,  and  of  the  Faithful 
the  major  part  will  consist  of  w^omen  and  laymen  ; 
besides  it  would  follow  that  all  the  members  of  the 
Church  would  have  equal  rights  and  the  consent  of  all 
would  be  necessary  for  every  act  of  Sovereignty 
Similarly  in  temporal  affairs  just  the  most  energetic 
champions  of  Popular  Sovereignty  regard  the  Sovereign 
People  as  the  merely  collective  sum  of  all  individuals ""'^ 
The  influence  of  this  '  individual-collective  '  explication 
of  the  idea  of  the  People  becomes  always  more  evident 
in  the  theories  that  men  hold  touching  the  base  and 
limits  of  the  representation  of  the  Whole  by  the 
Majority  or  by  Conciliar  Bodies  or  by  the  Ruler  '". 


Tlie  Idea  of  Personality.  73 


Thus  the  path  to  the  idea  of  '  State-Sovereignty  '  ^^^^^^^ 
was  barred  for  medieval  theory,  and  already  there  were  state's 
planted  in  that  theory  the  germs  of  those  later  systems  rJi^ilyis 
of  'Nature-Right' — the  system  of  Ruler-Sovereignty, 
the  system  of  Popular  Sovereignty  and  the  system  of 
Divided  Sovereignty — which  endeavoured  to  construe 
the  '  Right-Subjectivity '  of  the  State  now  in  a  central- 
istic,   now  in  an  atomistic,  but  always  in  a  purely 
mechanical  fashion. 

Before,  however,  we  turn  our  attention  to  these 
modern  elements  in  the  medieval  doctrine,  we  must,  in 
order  to  complete  our  picture,  cast  a  glance  at  the 
relation  and  interaction  between  the  idea  of  the  State 
and  the  idea  of  Right  (Law). 


IX.     The  State  and  Law. 

When  the  Middle  Age  began  to  theorize  over  the  The  state 
relation  of  the  State  to  Law,  the  old  Germanic  idea  of  itseiTi-om 
a  '  Right-State'  [Reign  of  Law]  had  already  shown  its 
insufficiency.  It  was  the  idea  of  a  State  which  existed 
only  in  the  Law  and  for  the  Law,  and  whose  whole 
life  was  bound  by  a  legal  order  that  regulated  alike  all 
public  and  all  private  relationships.  In  the  Church 
there  had  been  from  all  time  a  Power  established  which 
found  its  origin  and  its  goal  outside  and  beyond  a  mere 
scheme  of  Law  and  which  might  be  contrasted  with  that 
scheme.  So  also  State- Power,  so  soon  as  it  became 
conscious  of  its  own  existence,  be^an  to  strive  for  a 

o 

similar  emancipation  from  the  fetters  of  the  Law. 
Jurisprudence  and  Philosophy,  so  soon  as  they  felt 
the  first  rustle  of  the  breath  of  Classical  Antiquity, 
began  to  vie  with  each  other  in  finding  a  theoretical 
expression  for  an  idea  of  the  State  which  should 


74  Political  Theories  of  the  Middle  Age. 


Law  above 
State  and 
State 
above 
Law. 


Natural 
Law  and 
Positive 
Law. 


The  idea  of 

Natural 

Law. 


be  independent  of  the  idea  of  Law.  Almost  unani- 
mously medieval  Publicists  are  agreed  that  the  State 
is  based  on  no  foundation  of  mere  Law,  but  upon  moral 
or  natural  necessity:  that  it  has  for  its  aim  the  pro- 
motion of  welfare  :  that  the  realization  of  Law  is  but 
one  of  the  appropriate  means  to  this  end  :  and  that 
the  State's  relation  to  Law  is  not  merely  subservient 
and  receptive,  but  is  creative  and  dominant. 

But,  notwithstanding  these  acquisitions  from  Clas- 
sical Antiquity, — for  such  in  their  essence  they  were — 
Medieval  Doctrine,  while  it  was  truly  medieval,  never 
surrendered  the  thought  that  Law  is  by  its  origin 
of  equal  rank  with  the  State  and  does  not  depend  upon 
the  State  for  its  existence.  To  base  the  State  upon  some 
ground  of  Law,  to  make  it  the  outcome  of  a  legal  act, 
the  medieval  Publicist  felt  himself  absolutely  bound. 
Also  his  doctrine  was  permeated  by  the  conviction 
that  the  State  stood  charged  with  a  mission  to  realize 
the  idea  of  Law:  an  idea  which  was  given  to  man 
before  the  establishment  of  any  earthly  Power,  and 
which  no  such  Power  could  destroy.  It  was  never 
doubtful  that  the  highest  Might,  were  it  spiritual  or 
w^ere  it  temporal,  was  confined  by  truly  legal  limita- 
tions. 

How  then  was  it  thinkable  that,  on  the  one 
hand,  Law  ought  to  exist  by,  for  and  under  the 
State,  and  that,  on  the  other  hand,  the  State  ought 
to  exist  by,  for  and  under  the  Law  ?  The  thought 
that  State  and  Law  exist  by,  for  and  under  each 
other  was  foreign  to  the  Middle  Age.  It  solved 
the  problem  by  opposing  to  Positive  Law  the  idea 
of  Natural  Law.  This  idea,  which  came  to  it  from 
Classical  Antiquity,  it  proceeded  to  elaborate. 

This  is  not  the  place  in  which  to  expound  the 
medieval  doctrine  of  Nature- Right  or  Natural  Law 


The  State  and  Law. 


75 


or  to  pursue  its  evolution  through  the  innumerable 
learned  controversies  that  beset  it.  The  work  of  de- 
velopment was  done  partly  by  Legists  and  Decretists 
on  the  ground  provided  by  the  texts  of  Roman  and 
Canon  Law,  and  partly  by  Divines  and  Philosophers 
on  the  ground  of  Patristic  and  Classical  Philosophy. 
Thomas  Aquinas  drew  the  great  outlines  for  the  fol- 
lowing centuries.  To  say  more  would  be  needless,  for, 
however  many  disputes  there  might  be  touching  the 
origin  of  Natural  Law  and  the  ground  of  its  obligatory 
force,  all  were  agreed  that  there  was  Natural  Law, 
which,  on  the  one  hand,  radiated  from  a  principle 
transcending  earthly  power,  and,  on  the  other  hand, 
was  true  and  perfectly  binding  Law^'".  Men  supposed 
therefore  that  before  the  State  existed  the  Lex  Natu- 
ralis  already  prevailed  as  an  obligatory  statute,  and 
that  immediately  or  mediately  from  this  flowed  those 
rules  of  right  to  which  the  State  owed  even  the  possi- 
bility of  its  own  rightful  origin.  And  men  also  taught 
that  the  highest  power  on  earth  was  subject  to  the 
rules  of  Natural  Law.  They  stood  above  the  Pope 
and  above  the  Kaiser,  above  the  Ruler  and  above  the 
Sovereign  People,  nay,  above  the  whole  Community  of 
Mortals.  Neither  statute  nor  act  of  government, 
neither  resolution  of  the  People  nor  custom  could 
break  the  bounds  that  thus  were  set.  Whatever  con- 
tradicted the  eternal  and  immutable  principles  of 
Natural  Law  was  utterly  void  and  would  bind  no 
one^^ 

This  force  was  ascribed,  not  merely  to  the  his  The  Law 
N'atiu'ale  in  the  strictest  sense  of  that  term,  but  also  ^^a?ure', 
to  the  revealed  lus  Divinum  and  to  the  his  Commune  ?;,?ations. 
Gentiu77i  which  were  placed  alongside  of  it.  The 
revealed  Law  of  God  stood  to  the  Law  of  Nature 
(properly  so-called)  in  this  relation,  namely,  that,  while 


76  Political  Theories  of  the  Middle  Age. 


the  latter  was  implanted  by  God  in  Natural  Reason 
for  the  attainment  of  earthly  ends,  the  former  was 
communicated  by  God  to  man  in  a  supernatural  way  and 
for  a  supramundane  purpose  Then  the  hts  GentiMm 
(thereby  being  meant  such  Law  as  all  Nations  agreed 
in  recognizing)  was  regarded  as  the  sum  of  those  rules 
which  flowed  from  the  pure  Law  of  Nature  when 
account  was  taken  of  the  relationships  which  were 
introduced  by  that  deterioration  of  human  nature  which 
was  caused  by  the  Fall  of  Man.  Since  the  constituted 
Power  in  Church  and  State  had  not  created  this  Law 
of  Nations  but  had  received  it,  it  was  therefore  held 
to  partake  of  the  immutability  and  sanctity  of  Natural 
Law-^-^l 

Limits  of  The  deeper  were  the  inroads  that  were  made  into 
Law"^^  the  domain  of  ecclesiastical  and  temporal  legislation 
by  this  idea  of  a  Law  of  Nature  which  even  legis- 
lators might  not  infringe,  the  more  urgent  was  the 
need  for  a  definition  of  the  principle  which  set  limits 
to  a  law-giver's  power.  As  to  the  breadth  and  import 
of  the  principle  there  were  abundant  controversies. 
But  the  very  elasticity  of  the  limiting  idea  could  in 
all  circumstances  save  the  principle.  Men  agreed  that 
the  rules  of  Natural  Law  could  not  be  altogether 
abrogated  by  Positive  Law,  but  still  those  rules 
might  be,  and  ought  to  be,  modified  and  developed, 
amplified  and  restricted,  regard  being  had  to  special 
cases.  In  this  sense  a  distinction  was  often  drawn 
between  the  immutable  first  principles  and  the  mutable 
secondary  rules,  which  might  even  be  regarded  as 
bearing  an  hypothetical  character.  This  distinction 
was  applied  to  the  true  Itis  Nahtrale'^,  as  well  as  to 
The  the  Ins  Divinumr''^  and  the  Ins  Gentitmi^^. 
abmT^^  The  reverse  side  of  this  exaltation  of  Natural  Law 
Positive         ^^^^  ^Y^^  doctrine  of  the  absolute  subjection 


The  State  and  La-w. 


77 


of  Positive  Law  {^itis  civile)  to  the  Sovereign  Power. 
This  doctrine,  which  worked  a  revolution  in  the  world 
of  archaic  German  ideas,  taught  that  the  lus  Civile 
was  the  freely  created  product  of  the  Power  of  a  Com- 
munity, an  instrument  mutable  in  accordance  with 
estimates  of  utility,  a  set  of  rules  that  had  no  force  of 
their  own"*"'.  It  followed  that  in  every  Community  the 
wielder  of  Sovereignty  stood  above  the  Positive  Law 
that  prevailed  therein.  Nay,  always  more  decisively, 
men  found  the  distinguishing  note  of  Sovereignty, 
ecclesiastical  or  temporal,  in  the  fact  that  the  Sovereign 
was  not  bound  by  any  human  law. 

The  advocates  of   Ruler's-Sovereignty  identified  The  ^ 

■n»     •  •         T  -11  •  1       1     1        1  Pj^i'^ce  not 

Positive  Law  with  the  expressly  or  tacitly  declared  bound  by 
Will  of  the  Ruler.  They  placed  the  Ruler  before  and 
above  the  statutes  made  by  him  or  his  predecessors. 
They  taught  that  he  for  his  part  was  not  bound  by 
a  statute,  but  might  in  every  single  case  apply  or  break 
it  as  need  might  be.  Even  from  the  twelfth  century 
onwards,  Jurisprudence  laid  stress  on  those  Roman 
texts  that  made  for  this  result.  Thence  it  might  take 
the  comparison  of  the  Ruler  to  a  lex  animata  :  thence 
the  assertion  Qtwd  Principi placuit  legis  Iiabet  vigorem  : 
and  thence  above  all  a  sentence  destined  to  be,  from 
century  to  century,  a  focus  of  controversial  literature, 
namely,  Princeps  legibits  solutus  est.  Furnished  with 
these,  the  lawyers  could  thereout  fashion  other  maxims, 
in  particular  that  which  the  Popes  applied  to  them- 
selves :  Omnia  iura  habet  Princeps  in  pectore  sno. 
Philosophical  theory  assented.  It  found  the  specific 
difference  between  the  true  Monarch  and  the  Republi- 
can Magistrate  exactly  at  this  point.  The  latter  was 
bound  by  the  laws  made  by  the  People  or  by  him  and 
the  People.  The  former  wandered  around  as  a  lex 
animata,  and  in  every  single  case  might  modify  the 


78  Political  Theories  of  the  Middle  Age. 


previously  existing  law  by  virtue  of  a  word  that  was 
drawn  from  him  by  the  concrete  needs  of  the  moment""'. 
Nor  were  there  wanting  men  who  from  this  potestas 
legibiis  soluta  would  draw  absolutistic  consequences,  of 
which  the  Pope  in  the  Church  and  the  Kaiser,  or 
a  little  later  every  Sovereign,  in  the  State  would  reap 
the  profit'''. 

Positive         Against  this  doctrine  a  protest  was  made  by  all 

Law  and      ,  .  ,  -i      i  o  *         •  i 

the  Com-  those  writers  who  ascribed  Sovereignty  or  even  a  share 
munity.  Sovereignty  to  the  People  ;  and  their  protest  was 
sharply  formulated.  Whereas  the  maintainers  of 
'  Ruler's-Sovereignty '  declared  that  only  in  Republics 
were  the  laws  founded  on  the  Will  of  the  People  and 
therefore  superior  to  the  Magistrate'*^,  the  champions 
of  the  theory  which  accepted  Popular  Sovereignty  as 
a  first  principle  proclaimed  that,  no  matter  what  was 
the  form  of  government,  the  binding  force  of  Statute 
always  had  its  source  in  the  consent  of  the  Community. 
Therefore  they  would  hear  nothing  of  any  Ruler  who 
was  above  the  laws  :  no,  not  though  he  were  Pope  or 
Kaiser-*^'.  A  separation  of  the  legislative  from  the 
executive  power  begins  to  be  suggested  at  this  point, 
and  it  afterwards  becomes  of  the  highest  importance  in 
the  development  of  the  idea  of  the  Reign  of  Law 
[Rechtsstaat)-^.  However,  w^hat  was  at  issue  in  the 
first  instance  was  only  the  whereabouts  of  Sovereignty, 
and  not  the  relation  between  Sovereign  Power  and 
Law,  for  the  one  party  claimed  for  the  Sovereign 
Assembly,  (in  Church  or  State  as  the  case  might  be,) 
exactly  the  same  superiority  to  Positive  Law  which  the 
other  party  granted  to  the  Monarchal 
Natural  ^  Medieval  theory  therefore  was  unanimous  that  the  ^ 
Potitive  power  of  the  State  stood  below  the  rules  of  Natural  J 
"  and  above  the  rules  of  Positive  Law.  That  being  so, 
an  analoorous  distinction  had  to  be  drawn  in  the  matter 


The  State  and  Law.  79 


of  the  State's  relation  to  two  classes  of  Rights  and 
Duties. 

A  Right  that  was  conceived  to  fall  within  Positive 
Law  was  regarded  as  being,  like  the  rule  whence  it 
flowed,  the  outcome  of  a  concession  made  by  the  State, 
and  was  subject  to  the  Sovereign's  disposal.  Men  did 
not  allow  that  a  vested  right,  if  acquired  by  a  title 
derived  from  Positive  Law,  could  as  a  matter  of 
principle  be  valid  as  against  the  Power  of  the  State. 

Already,  as  is  well  known,  the  jurist  Martinus  Eminent 
[circ.  1 1 50]  ascribed  to  the  Emperor  a  true  ownership 
of  all  things,  and  therefore  a  free  power  of  disposal 
over  the  rights  of  private  persons.  He  relied  in 
particular  on  some  words  in  the  Code  (c.  7,  37,  1.  3): 
qtmm  omnia  P^Hiicipis  esse  intelligantitr.  On  the 
ecclesiastical  side  a  similar  doctrine  was  asserted  in 
favour  of  the  Pope'™.  For  all  this,  however,  a  con- 
trary doctrine,  which  was  already  maintained  by 
Bulgarus  [circ.  1 1 50],  was  constantly  gaining  ground. 
It  taught  that  above  private  ownership  there  stood 
only  a  Superiority  on  the  part  of  the  State,  which  was 
sometimes  expressly  called  a  mere  mrisdidio  et  pro- 
tection and  which,  even  when  it  was  supposed  to  be 
a  sort  of  dominium,  a  sort  of  over-ownership,  was  still 
treated  in  a  purely  '  publicistic  '  manner However, 
it  was  just  out  of  this  Superiority  that  men  developed 
the  theory — a  theory  strange  to  archaic  German  law — 
of  a  Right  of  Expropriation,  by  virtue  whereof  the 
State,  whenever  Reason  of  State  demanded  this,  might 
modify  private  rights  or  abrogate  them-'-. 

Thus  the  history  of  the  Theory  of  Expropriation  J^^gJ^p^.^"^^ 
takes,  in  the  main,  the  form  of  a  process  whereby  priation. 
definite  bounds  are  set  to  an  expropriatory  right.  It 
was  generally  agreed  that  the  Supreme  Power  may 
interfere  with  acquired  rights  'for  good  cause,'  but  not 


8o  Political  Theories  of  the  Middle  Age. 


arbitrarily.  For  some  this  was  an  absolute  principle  of 
law"',  and  even  those  who  would  allow  the  Sovereign, 
either  in  all  cases  or  at  least  in  certain  cases,  to  trans- 
gress it,  still  regarded  it  as  a  general  rule''^  As  a 
'  sufficient  cause,'  besides  forfeiture  for  crime  and  many 
other  multifarious  matters,  we  see  Public  Necessity,  to 
which  Private  Right  must  yield  in  case  of  collision. 
However,  we  may  hear  with  increasing  stress  the 
assertion  that,  when  there  is  expropriation  for  the  good 
of  the  public,  compensation  should  be  made  at  public 
expense'"';  but  from  this  rule  exceptions  will  be  made, 
sometimes  for  the  case  of  general  Statutes  which  affect 
all  individuals  alike-'^  and  sometimes  for  cases  of 
necessity-^. 

Natural  Now  it  is,  however,  highly  characteristic  of  Medi- 

Pi-operty  eval  Doctrine  that  the  ground  of  Positive  Law  did  not 
Contract.  Seem  to  it  capable  of  supporting  this  protection  of 
acquired  rights.  On  the  contrary,  the  sanctity  as 
against  the  Sovereign  of  any  such  right  was  only  to  be 
maintained  if  and  in  so  far  as  the  right  in  question 
could  be  based  outside  Positive  Law  on  some  ground 
of  Natural  Law.  In  this  context  two  propositions 
became  the  foundation  of  the  whole  doctrine.  First : 
the  institution  of  property  had  its  roots  in  the  lies  Gen- 
tiiLin  :  in  Law  therefore  which  flowed  out  of  the  pure 
Law  of  Nature  without  the  aid  of  the  State,  and  in 
Law  which  was  when  as  yet  the  State  was  not.  Thence 
it  followed  that  particular  rights  which  had  been  ac- 
quired by  virtue  of  this  Institution  in  no  wise  owed 
their  existence  exclusively  to  the  State-'^l  Secondly  : 
the  binding  force  of  Contracts  descended  from  the  Law 
Natural,  so  that  the  Sovereign,  though  he  could  not 
bind  himself  or  his  successors  by  Statute,  could  bind 
himself  and  his  successors  to  his  subjects  by  Contract. 
Thence  it  followed  that  every  right  which  the  State 


The  State  and  Law. 


8i 


had  conferred  by  way  of  Contract  was  unassailable  by 
the  State,  though  here  again  an  exception  v/as  made 
in  favour  of  interferences  proceeding  ex  iusta  causa^^. 
If,  on  the  other  hand,  a  private  right  could  vouch 
for  its  existence  no  title  of  Natural  Law,  then  doctrinal 
consistency  denied  a  similar  protection  to  this  '  merely 
positive  right This  struck  in  particular  at  those 
rights  which  were  held  to  fall  under  the  rubric  of 
'  privileges '  unilaterally  conceded  by  the  State  and 
sanctioned  only  by  Positive  Law.  An  ever  growing 
opinion  deemed  that  rights  of  this  class  were  always 
freely  revocable  at  the  instance  of  the  public  weal-^\ 

Thus  as  reofards  acquired  rio^hts,  the  relative  decree  innate 
of  protection  which  was  due  to  any  such  right  was  Acquired 
held  to  be  derived  from  and  measured  by  the  founda- 
tion  in  Natural  Law  of  the  'title'  by  which  in  the 
given  case  that  right  had  been  acquired.  On  the  other 
hand,  absolute  protection  against  Positive  Law  was 
due  to  those  rights  which  were  directly  conferred  by 
pure  Natural  Law  without  the  intermediation  of  any 
entitling  act  [e.g.  the  right  to  life],  and  which  therefore 
were  not  conditioned  by  any  title  and  could  not  be 
displaced  by  a  title  that  was  adverse. 

In  this  sense  Medieval  Doctrine  was  already  filled  The 

.  Rights 

with  the  thought  of  the  inborn  and  indestructible  rights  of  Man. 
of  the  Individual.  The  formulation  and  classification 
of  such  rights  belonged  to  a  later  stage  in  the  growth 
of  the  theory  of  Natural  Law.  Still,  as  a  matter  of 
principle,  a  recognition  of  their  existence  may  be  found 
already  in  the  medieval  Philosophy  of  Right  when  it 
attributes  an  absolute  and  objective  validity  to  the 
highest  maxims  of  Natural  and  Divine  Law.  More- 
over, a  fugitive  glance  at  Medieval  Doctrine  suffices 
to  perceive  how  throughout  it  all,  in  sharp  contrast 
to  the  theories  of  Antiquity,  runs  the  thought  of  the 

M.  6 


82  Political  Theories  of  the  Middle  Age. 


absolute  and  imperishable  value  of  the  Individual :  a 
thought  revealed  by  Christianity  and  grasped  in  all  its 
profundity  by  the  Germanic  Spirit.  That  every  indi- 
vidual by  virtue  of  his  eternal  destination  is  at  the  core 
somewhat  holy  and  indestructible  even  in  relation  to 
the  Highest  Power  :  that  the  smallest  part  has  a  value 
of  its  own,  and  not  merely  because  it  is  part  of  a  whole  : 
that  every  man  is  to  be  regarded  by  the  Community, 
never  as  a  mere  instrument,  but  also  as  an  end  : — all 
this  is  not  merely  suggested,  but  is  more  or  less  clearly 
expressed^-. 

Rights  of  On  the  other  hand  occurred  the  thought  of  the  origi- 
munity.  nal  and  essential  rights  of  Superiority  which  belonged 
to  the  Whole  Body.  Here,  once  more,  the  Church 
had  set  up  a  model  :  a  model  of  a  Power  in  the  Com- 
munity which,  by  virtue  of  Divine  Law,  was  necessarily 
implicated  in  the  Community's  existence  and  therefore 
was  absolutely  one  and  indivisible  and  inalienable. 
The  same  necessity,  the  same  oneness,  indivisibility  and 
inalienability  were  soon  claimed  for  the  plenitude  of 
the  Imperial  Power  by  Legists  and  Publicists.  Thus 
could  they  demonstrate  against  the  Church  the  nullity 
of  the  Donation  of  Constantine-^^  and  thus  could  they 
demonstrate  against  other  temporal  rulers  the  impossi- 
bility of  any  complete  liberation  by  privilege  or  pre- 
scription from  the  power  of  the  Empire'*".  What  in 
this  context  was  said  of  the  Empire  became  in  the  end 
bare  theory  ;  but,  soon  afterwards  it  gained  practical 
•  value  by  being  transferred  from  the  Empire  to  the 
State.  It  was  from  this  point  outwards  that,  with  the 
aid  of  legal  and  philosophic  argument,  was  laid  the 
doctrinal  foundation  upon  which  in  course  of  time  the 
towering  Modern  State,  (absorbing  meanwhile  into  itself 
the  feudal  and  patrimonial  rights  of  the  Middle  Age,) 
could  take,  and  actually  took,  its  stand.    There  arose 


The  State  'and  Law. 


83 


the  doctrine  of  a  State  Power,  precedent  and  superior 
to  all  Positive  Law,  founded  by  the  very  Law  of 
Nature,  possessing  an  immutable  sphere  of  action  :  of 
a  State  Power  which,  being  an  aboriginal  and  essential 
attribute  of  the  Community,  was  the  correlate  of  the 
inborn  rights  of  individual  men.  Thenceforward,  with 
ever-increasing  distinctness,  were  formulated  those 
indestructible  rights  of  Superiority  which  are  implicit 
in  the  idea  of  the  State  :  rights  which  needed  no  title 
in  Positive  Law  and  could  not  be  diminished  by  any 
title  which  that  Law  could  bestow^^'*  And  then  the 
notion  of  Sovereignty  received  its  culminating  attribute, 
when  (however  highly  the  Supreme  Power  might  be 
extolled)  men  asserted  that  even  itself  could  not  destroy 
itself.  If,  on  the  one  hand,  the  prevailing  doctrine 
hence  deduced  the  inalienable  rights  of  the  Crown^^ 
there  were,  even  in  the  Middle  Age,  those  who  would 
establish  by  similar  reasoning  the  inalienable  rights  of 
the  People.  Indeed,  the  attribute  of  indestructibility 
was  applied  to  that  original  Sovereignty,  which  a  com- 
mon opinion  attributed  to  the  Community,  and  we  may 
already  see  assertions  of  the  logically  reasoned  conclu- 
sion that,  by  virtue  of  Divine  and  Natural  Law,  the 
Sovereignty  of  the  People  is  absolutely  indestructible^^ 
Hand  in  hand  with  this  went  a  theoretical  process 
which  distinguished  those  rights  of  Superiority  which 
belonged  to  the  very  essence  of  the  State  from  fiscal 
rights  casually  acquired  by  the  State  and  held  by  it  in 
the  same  manner  as  that  in  which  a  private  man  might 
hold  them"®l  And  thus  it  fell  out  that,  as  the  doctrine 
of  Nature  Right  became  victorious,  men  began  to 
grasp,  as  a  matter  of  principle,  that  separation  of  lus 
Publicum  from  his  Privatum  which  they  had  learned 
from  the  Romans.  That  contrast  had  at  one  time 
seemed  to  them  hardly  more  than  a  matter  of  words  ; 

6—2 


84  Political  Theories  of  the  Middle  Age. 


soon,  however,  it  was  becoming  ever  more  decisively 
a  main  outline  in  the  ground-plan  of  all  constructive 
Jurisprudence-^^ 
Transgres-       In  the  course  of  these  discussions  of  the  relation- 
limits  by   ship  of  the  State  to  Law,  a  deep  difference  of  opinion 
the  State,  j^eg^n  to  reveal  itself,  and  to  cleave  the  Medieval 
doctrine  in  twain,  so  soon  as  questions  were  raised  as 
to  the  effects  of  a  transgression  by  the  State  Power  of 
the  limits  that  Law  set  to  its  action. 
Void  acts        The    properly    Medieval   and    never  completely 
^'    obsolete  theory  declared  that  every  act  of  the  Sove- 
reign which  broke  the  bounds  drawn  by  Natural  Law 
was  formally  null  and  void.   As  null  and  void  therefore 
every  judge  and  every  other  magistrate  who  had  to 
apply  the  law  was  to  treat,  not  only  every  unlawful 
executive  act,  but  every  unlawful  statute,  even  though 
it  were  published  by  Pope  or  Emperor'^°.  Further- 
more, the  unlawful  order  or  unlawful  act  was  null  and 
void  for  the  individual  subjects  of  the  State.     It  was 
just  for  this  cause  that  their  duty  of  obedience  was 
conceived  as  a  conditional  duty,  and  that  the  right  of 
actively  resisting  tyrannical  measures  was  conceded  to 
them^^ 

Formal  This  truly  Medieval  mode  of  thought  was  in  har- 

tence^of  mony  with  the  actual  practice  of  the  age  of  feudalism 
the  State.  which  the  Community  appeared  as 

a  legal  system  of  '  Estates.'  But,  as  the  idea  of 
Sovereignty  took  a  sharper  outline,  theorists  began 
to  hold  that  in  the  legal  sphere  the  Sovereign  was 
formally  omnipotent.  Then  the  prevalent  opinion 
found  itself  once  more  compelled  to  declare  that 
in  a  Monarchy  both  the  legislative  and  the  executive 
acts  of  the  Monarch  are  equipped  with  this  formal 
omnipotence.  On  the  other  hand,  the  doctrine  of 
Popular  Sovereignty  made  exactly  at  this  point  a 


The  State  and  Law. 


85 


fruitful  application  of  its  principle  of  a  Separation  of 
Powers,  since  it  would  allow  this  formal  omnipotence 
only  to  acts  of  legislation.  When  this  point  of 
view  had  been  attained,  all  limitations  of  the  State 
Power  began  to  look  like  no  more  than  the  claims 
which  Righteousness  makes  upon  a  Sovereign  Will. 
If  that  Will  knowingly  and  unambiguously  rejected 
such  claims,  it  none  the  less  made  a  law  which  was 
formally  binding :  a  law  which  was  externally  binding 
on  individual  men,  and  on  the  Courts  also"^'. 

None  the  less,  there  still  was  life  in  the  notion  that  The  State  ^ 
a  duty  of  the  State  which  was  deducible  from  Natural  Natural 
Law  was  a  legal  duty.  Although  there  was  no  sharp 
severance  of  Natural  Law  from  Morality,  the  limits 
drawn  round  the  legitimate  sphere  of  Supreme  Power 
were  not  regarded  as  merely  ethical  precepts.  They 
were  regarded  and  elaborated  as  rules  which  controlled 
external  action,  and  so  were  contrasted  with  purely 
ethical  claims  made  upon  internal  freedom-^l  No  one 
doubted  that  the  maxims  of  Divine  and  Natural  Law 
bore  the  character  of  true  rules  of  true  Law,  even  when 
they  were  not  to  be  enforced  by  compulsory  processes. 
No  one  doubted  that  a  true  and  genuine  Law^  existed 
which  preceded  the  State  and  stood  outside  and  above 
the  State.  No  one  doubted  that  formal  Right  [or 
Law]  might  be  material  Unright  [or  Unlaw],  and  that 
formal  Unright  might  be  material  Right No  one 
doubted  that  the  formally  unconditional  duty  of  obedi- 
ence that  is  incumbent  on  subjects  was  materially 
limited  by  the  Law  of  God  and  Nature.  No  one 
doubted  that  the  words  of  Holy  Writ  '  We  must  obey 
God  rather  than  man '  contained  a  rule  of  Law  for  all 
places  and  all  ages,  or  that  the  meanest  of  subjects 
would  be  doing  Right  [Law]  if  in  conformity  with  the 
dictates  of  his  conscience  he  refused  obedience  to  the 


86  Political  Theories  of  the  Middle  Age. 


Sovereign  Power  and  steadfastly  bore  the  consequence, 
or,  again,  that  such  a  subject  if  he  took  the  opposite 
course  would  be  doing  not  Right  [Law]  but  Unright 
[Unlaw]■^^  And  we  should  go  far  wrong  if  we  sup- 
posed that  the  distinction,  between  formal  Right  [or 
Law]  and  material  Right  [or  Law],  a  distinction 
immanent  in  the  idea  of  a  Law  of  Nature,  was  but 
mere  inactive  theory.  To  say  nothing  of  indirect 
consequences,  it  produced  a  direct  result  of  far-reach- 
ing practical  importance.  All  tribunals,  all  officials 
charged  with  the  application  of  law,  were  conceived 
to  be  in  duty  bound  to  bring  the  acts  of  the  Sovereign 
into  the  closest  possible  conformity  with  the  dictates 
of  material  Right  [or  substantial  Justice].  For  this 
purpose  they  were  to  employ  that  exceedingly  wide 
power  of  '  interpretation '  with  which  they  were  sup- 
posed to  be  entrusted^. 
The  State  DuHng  the  Middle  Age  we  can  hardly  detect  even 
Morality,  the  beginnings  of  that  opinion  which  would  free  the 
Sovereign  (whenever  he  is  acting  in  the  interest  of  the 
public  weal)  from  the  bonds  of  the  Moral  Law  in 
general,  and  therefore  from  the  bonds  of  the  Law  of 
Nature^''.  Therefore  when  Machiavelli  based  his 
lesson  for  Princes  upon  this  freedom  from  restraint, 
this  seemed  to  the  men  of  his  time  an  unheard  of 
innovation  and  also  a  monstrous  crime.  Thus  was  laid 
the  foundation  for  a  purely  '  political '  theory  of  the 
State,  and  thenceforward  this  theory  appeared  as  a 
rival  of  the  '  nature-rightly  '  doctrine.  But  just  because 
there  was  a  competitor  and  assailant  in  the  field,  this 
old  doctrine  evolved  itself  into  an  ampler  form  in  the 
course  of  the  next  century.  More  and  more  the  germs 
which  were  present  in  the  medieval  lore  unfolded  them- 
selves, and  new  thoughts  about  the  nature  of  Human 
Society  were  brought  to  light  as  the  old  elements 


The  State  and  Law. 


87 


were  systematized  and  combined.  Irresistibly  and 
incessantly  waxed  the  System  of  Natural  Law,  intern- 
ally growing  towards  completion,  externally  extending 
the  boundaries  of  its  domination  over  the  minds  of 
men,  plunging  deeper  into  the  positive  doctrines  of  Law 
and  Polity,  subjecting  them  to  its  transmutative  power. 


X.     The  Beginnings  of  the  Mode7ni  State. 
At  all  these  points  the  Doctrine  of  the  Medieval  Transmu- 

.  tation  cf 

Publicists  has  shown  us  a  double  aspect.  Everywhere  Medieval 
beside  the  formulation  of  thoughts  that  were  properly  by  Antique 
medieval  we  have  detected  the  genesis  of  '  antique- 
modern '  ideas,  the  growth  of  which  coincides  with  the 
destruction  of  the  social  system  of  the  Middle  Age  and 
with  the  construction  of  '  nature-rightly '  theories  of 
the  State.  It  remains  for  us  to  set  forth  by  way  of 
summary  this  tendency  of  medieval  doctrine  to  give 
birth  to  the  modern  idea  of  the  State  and  to  transform 
the  previously  accepted  theory  of  Communities.  We 
must  attend  separately  to  the  more  important  of  those 
points  at  which  this  tendency  exhibits  itself^l 

The  fundamental  fact  which  chiefly  concerns      state  and^ 
when  we  contemplate  this  process  of  evolution  is  that  obliterate 
in  medieval  theory  itself  we  may  see  a  drift  which  mediate  « 
makes  for  a  theoretical  concentration  of  right  and  ^'^^"P^* 
power  in  the  highest  and  widest  group  on  the  one 
hand  and  the  individual  man  on  the  other,  at  the  cost 
of  all  intermediate  groups.    The  Sovereignty  of  the  ^ 
State  and  the  Sovereignty  of  the   Individual  were 
steadily  on  their  way  towards  becoming  the  two  central 
axioms   from  which  all  theories  of  social  structure 
would  proceed,  and  whose  relationship  to  each  other 
would  be  the  focus  of  all  theoretical  controversy.  And 
soon  we  may  see  that  combination  which  is  charac- 


88  Political  Theories  of  the  Middle  Age. 


teristic  of  the  '  nature-rightly  '  doctrines  of  a  later  time  : 
namely,  a  combination  of  the  Absolutism  which  is  due 
to  the  renaissance  of  the  antique  idea  of  the  State, 
with  the  modern  Individualism  which  unfolds  itself 
from  out  the  Christiano-Germanic  thought  of  Liberty. 
Origin  of        As  regfards  the  question  touching:  the  Oriofin  of  the 

theStatein  ^  .....  .    .     ^    .    .  , 

Contract.  State — its  origm  m  time  and  its  origin  in  law — the 
Theory  of  the  Social  Contract  slowly  grew.  It  was 
generally  agreed  that  in  the  beginning  there  was  a 
State  of  Nature.  At  that  time  '  States '  were  not,  and 
pure  Natural  Law  prevailed,  by  virtue  whereof  all 
persons  were  free  and  equal  and  all  goods  were  in 
common.  Thus  it  was  universally  admitted  that  the 
Politic  or  Civil  State  was  the  product  of  acts  done  at  a 
later  time,  and  the  only  moot  question  was  whether 
this  was  a  mere  consequence  of  the  Fall  of  Man,  or 
whether  the  State  would  have  come  into  being,  though 
in  some  freer  and  purer  form,  if  mankind  had  increased 
in  numbers  while  yet  they  were  innocent^^l  By  way 
of  investigating  the  origin  of  Political  Society,  men  at 
first  contented  themselves  with  a  general  discussion  of 
the  manner  in  which  dominitmi  had  made  its  appear- 
ance in  the  world  and  the  legitimacy  of  its  origin  ; 
and  in  their  concept  of  dominium,  Rulership  and 
Ownership  were  blent.  Then,  when  the  question 
about  Ownership  had  been  severed  from  that  about 
Rulership,  we  may  see  coming  to  the  front  always  more 
plainly  the  supposition  of  the  State's  origin  in  a  Con- 
tract of  Subjection  made  between  People  and  Ruler^*"^. 
Even  the  partizans  of  the  Church  adopt  this  opinion 
when  they  have  surrendered  the  notion  that  the  State 
originated  in  mere  wrong.  But  then  arose  this  further 
question: — How  did  it  happen  that  this  Community 
itself,  whose  Will,  expressed  in  an  act  of  transfer,  was 
the  origin  of  the  State,  came  to  be  a  Single  Body 


The  Beginnings  of  the  Modern  State.  89 


competent  to  perform  a  legal  act  and  possessing  a 
transferable  power  over  its  members  ?  At  this  point 
the  idea  of  a  Divine  Creation  of  the  State  began  to 
fail,  for  however  certain  men  might  be  that  the  Will 
of  God  was  the  ultimate  cause  of  Politic  Society,  still 
this  cause  fell  back  into  the  position  of  a  caitsa  remota 
working  through  human  agency^°\  As  a  more  proxi- 
mate cause  the  '  politic  nature '  which  God  has  im- 
planted in  mankind  could  be  introduced  ;  and  Aristotle 
might  be  vouched.  We  can  not  say  that  there  were 
absolutely  no  representatives  of  a  theory  of  organic 
development,  which  would  teach  that  the  State  had 
grown  out  of  that  aboriginal  Community,  the  Family, 
in  a  purely  natural,  direct  and  necessary  fashion Still 
the  weightier  opinion  w^as  that  Nature  (like  God)  had 
worked  only  as  caiLsa  reiiiota  or  causa  imptdsiva  :  that 
is,  as  the  source  of  a  need  for  and  of  an  impulse 
towards  the  social  life,  or,  in  short,  as  a  more  or  less 
compulsory  motive  for  the  foundation  of  the  State. 
More  and  more  decisively  was  expressed  the  opinion 
that  the  very  union  of  men  in  a  political  bond  was  an 
act  of  rational,  human  WilP'^l  Occasionally  there  may 
appear  the  notion  that  the  State  was  an  Institution 
which  was  founded,  as  other  human  institutions  [e.g. 
monasteries  or  colleges]  were  founded,  by  certain 
definite  Founders,  either  in  peaceful  wise  or  by  some 
act  of  violence^*^^;  but,  in  the  main,  there  was  a  general 
inclination  towards  the  hypothesis  of  some  original, 
creative,  act  of  Will  of  the  whole  uniting  Community. 
This  joint  act  was  compared  to  the  self-constitution  of 
a  corporation But  men  did  not  construct  for  this 
purpose  any  legal  concept  that  was  specially  adapted 
to  the  case.  The  learning  of  Corporations  developed 
by  the  lawyers  had  no  such  concept  to  offer,  for  they 
also,  despite  the  distinction  between  uiuversitas  and 


90  Political  Theories  of  the  Middle  Age. 


societas,  [between  Corporation  and  Partnership,]  con- 
fused the  single  act  whereby  a  Community  unifies 
itself,  with  a  mere  obligatory  contract  made  among 
individuals,  and  they  regarded  the  peculiar  unity  of  the 
Corporation  as  something  that  came  to  it  from  without 
by  virtue  of  a  concession  made  by  the  State.  Thus  in 
the  end  the  Medieval  Doctrine  already  brings  the 
hypothetical  act  of  political  union  under  the  category 
of  a  Contract  of  Partnership  or  '  Social '  Contract^. 
On  the  one  hand,  therefore,  proclamation  was  made 
of  the  original  Sovereignty  of  the  Individual  as  the 
source  of  all  political  obligation In  this  manner  a 
base  was  won  for  the  construction  of  Natural  Rights 
of  Man,  which,  since  they  were  not  comprised  in  the 
Contract,  were  unaffected  by  it  and  could  not  be 
impaired  by  the  State.  On  the  other  hand,  since  the 
Sovereignty  of  the  State,  when  once  it  was  erected, 
rested  on  the  indestructible  foundation  of  a  Contract 
sanctioned  by  the  Law  of  Nature,  conclusions  which 
reached  far  in  the  direction  of  the  State's  Absolutism 
could  be  drawn  by  those  who  formulated  the  terms  of 
the  Contract 

The  Final  If  Philosophy  was  to  find  the  terms  of  that  fictitious 
the  State.  Contract  which  provided  a  basis  of  Natural  Law  for 
the  State  and  the  State's  power,  it  could  not  but  be 
that  the  decisive  word  about  this  matter  would  be 
sought  in  the  purpose  which  the  State  and  its  power 
are  designed  to  fulfil.  If,  on  the  one  part,  the  idea 
was  retained  that  every  individual  had  a  final  cause  of 
his  own,  which  was  independent  of  and  stood  outside 
and  above  all  political  and  communal  life^^^ — and  here 
was  a  divergence  from  Classical  Antiquity — so,  on  the 
other  part,  the  final  cause  of  the  State  was  always 
being  enlarged — and  here  was  a  departure  from  the 
earlier  Middle  Age,  though  at  times  we  may  still  hear 


The  Beginnings  of  the  Modern  State.  91 


echoes  of  the  old  Germanic  idea  that  the  State's  one 
function  is  the  maintenance  of  peace  and  law'''.  In  imita- 
tion of  classical  thought,  men  defined  the  State's  purpose 
to  be  a  happy  and  virtuous  life  :  the  realization  of  the 
public  weal  and  civic  morality.  True,  that,  according  to 
the  prevailing  doctrine,  the  function  of  the  State  had  a 
limit,  and  a  necessary  complement,  in  the  function  of 
the  Church :  a  function  making  for  a  higher  aim  than 
that  of  the  State,  namely,  for  inward  virtue  and  supra- 
mundane  bliss^'\  But  an  always  stronger  assault  was 
being  made  upon  the  Church's  monopoly  of  culture. 
An  independent  spiritual  and  moral  mission  was 
claimed  for  the  State until  at  length  there  were 
some  who  would  ascribe  to  the  State  the  care  for  all 
the  interests  of  the  Community,  whether  those  interests 
were  material  or  whether  they  were  spirituaP^l 

If,  however,  the  contents  of  the  Institutes  of  Na-  Natural 

IT  .  ,         .       Rights  and 

tural  Law  were  to  be  discovered  by  a  consideration  the  Final 
of  their  final  cause,  this  same  final  cause  would  also  diTsu^te. 
be  the  measure  of  those  indestructible  rights  that  per- 
tained to  the  '  Subjects '  of  Natural  Law.  From  the 
final  cause  of  the  Individual  flow  the  innate  and  in- 
alienable rights  of  liberty,  and  so  from  the  final  cause 
of  the  Politic  Community  flow — and  from  of  old  the 
Church  might  here  serve  as  a  model — the  State's 
innate  and  inalienable  rights  of  superiority.  From  the 
rights  thus  bestowed  Positive  Law  could  take,  and  to 
them  it  could  add,  nothing.  If,  as  a  matter  of  fact,  it 
contravenes  them,  it  must  admit  itself  over-ruled.  The 
maxim  Sahis  piiblica  sttprema  lex  entered  on  its  reign, 
and  a  good  legal  title  had  been  found  on  which  Revo- 
lution, whether  it  came  from  above  or  from  below, 
could  support  itself  when  it  endeavoured  to  bring  the 
traditional  law  into  conformity  with  the  postulates  of 
the  Law  of  Nature. 


92  Political  Theories  of  the  Middle  Age. 


Revoiu-  In  truth  IMedieval  Doctrine  prepared  the  way  for 
elements  the  great  revolutions  in  Church  and  State,  and  this  it 
Lawf^^^*^^^  did  by  attributing  a  real  working  validity  as  rules  of 
Natural  Law  to  a  system  constructed  of  abstract  pre- 
misses and  planned  in  accordance  with  the  dictates  of 
expediency.  The  whole  internal  structure  of  the  State 
was  subjected  ever  more  and  more  to  criticism  pro- 
ceeding from  the  Rationalist's  stand-point.  The 
value  of  the  structure  was  tested  by  reference  to  its 
power  of  accomplishing  a  purpose  and  was  measured  by 
reference  to  an  ideal  and  *  nature-rightly '  State.  The 
steering  of  public  affairs  was  likened  to  the  steering  of 
a  ship  ;  it  is  a  free  activity  consciously  directed  towards 
the  attainment  of  a  goaP^^  Thus  there  arose  the  idea 
of  an  Art  of  Government,  and  people  undertook  to 
teach  it  in  detaiP^l  There  was  disputation  about  the 
best  form  of  government  and  the  most  suitable  laws, 
and  out  of  this  grew  a  demand  for  such  a  transformation 
of  Public  Law  as  would  bring  it  into  accord  with  theo- 
retical principles.  Through  the  last  centuries  of  the 
Middle  Age,  alike  in  Church  and  Empire,  unbroken 
and  always  louder,  rings  the  cry  for  '  Reformation ' ! 
Develop-  Turning  now  to  the  fundamental  concepts  of  Public 
Sove-  Law,  the  resuscitation  and  further  development  of  the 
reignty.  classical  idea  of  Sovereignty  will  appear  to  us  as  the 
main  exploit  achieved  in  this  department  by  the  pre- 
valent endeavour  to  construct  constitutions  w^hich  shall 
conform  to  Natural  Law.  Men  found  the  essence  of 
all  political  organization  in  a  separation  of  Rulers  and 
Ruled.  Also  they  took  over  from  the  antique  world 
the  doctrine  of  the  Forms  of  Government  and  of  the 
distinctions  that  exist  between  them.  And  so  they 
came  to  the  opinion  that  in  every  State  some  one  visible 
Ruler,  a  man  or  a  ruling  assembly,  is  the  '  Subject '  of 
a  Sovereign  Power  over  the  Ruled^^^  And  then,  when, 


The  Begimmtgs  of  the  Modern  State.  93 


in  contrast  to  the  theory  of  *  Ruler's  Sovereignty,'  men 
developed  the  theory  of  a  Popular  Sovereignty,  existing 
everywhere  and  always,  the  partizans  of  this  doctrine 
did  not  once  more  call  in  question  the  newly  acquired 
idea  of  Sovereignty,  but  transferred  it  to  an  Assembly 
which  represents  the  People^^''.  The  Medieval  notion 
of  Sovereignty,  it  is  true,  always  differed  in  principle 
from  that  exalted  notion  which  prevailed  in  after  times. 
For  one  thing,  there  was  unanimous  agreement  that 
the  Sovereign  Power,  though  raised  above  all  Positive, 
is  limited  by  Natural  Law^^l  Secondly,  it  was  as 
unanimously  agreed  that  the  idea  of  the  Sovereign  by 
no  means  excludes  an  independent  legal  claim  of  non- 
sovereign  subjects  to  participate  in  the  power  of  the 
State.  On  the  contrary,  advocates  of  '  Ruler's  Sove- 
reignty '  expressly  maintained  a  political  right  of  the 
People,  and  advocates  of  the  People's  Sovereignty 
expressly  maintained  a  political  right  of  the  Ruler,  so 
that  even  the  extremest  theories  gave  to  the  State 
somewhat  of  a  *  constitutional '  character.  Therefore 
it  was  thought  possible  to  combine  the  Sovereignty  of 
the  Monarch  with  what  was  in  principle  a  Limited 
Monarchy Therefore  also  the  idea  of  a  Mixed 
Constitution  could  be  developed  without  facing  awk- 
ward questions Therefore  again  the  beginnings  of  a 
doctrine  which  teaches  the  Separation  of  Powers  could 
be  reared  on  a  basis  of  Popular  Sovereignty^^'.  And 
therefore  also  the  Representative  System  could  be 
theoretically  elaborated^-l  None  the  less,  the  idea  of 
Sovereignty,  when  once  it  had  been  formulated,  irre- 
sistibly pressed  forwards  towards  the  conclusion  that 
in  the  last  resort  some  one  Ruler  or  some  one  Assem- 
bly must  be  the  '  Subject '  of  the  Supreme  Power,  and 
that  in  case  of  conflict  the  State  is  incorporate  only  in 
this  one  man  or  this  one  Assembly. 


94  Political  Theories  of  the  Middle  Age. 


in  im- 
mediate 
contact. 


State  and  The  State  Power,  thus  focussed  at  a  single  point, 
made,  over  all  members  of  the  State,  ever  fresh  claims 
to  all  such  rights  of  Superiority  as  were  comprised 
within  the  idea  and  measure  of  the  State's  final  cause 
and  were  compatible  with  those  rights  of  Liberty  of 
which  the  Individual  could  not  be  deprived^'l  And 
just  because  the  rights  of  Superiority  flowed  from  the 
very  idea  of  State  Power,  that  Power,  with  increasing 
insistance,  claimed  to  exercise  them  over  all  individuals 
equally  and  with  equal  directness  and  immediacy If 
then,  on  the  one  hand,  the  Individual  just  in  so  far  as 
he  belongs  to  the  Community  is  fully  and  wholly 
absorbed  into  the  State^-',  so,  on  the  other  hand,  there 
is  a  strong  tendency  to  emancipate  the  Individual  from 
all  bonds  that  are  not  of  the  State's  making. 
The  State       There  was,  moreover,  a  steady  advance  of  the 

an  exclu-  •  i  i       o  •  ^      '  •  t 

sive group,  notion  that  the  btate  is  an  exclusive  Community.  In 
phrases  which  tell  of  the  Antique  World  men  spoke  of 
the  State  simply  as  'Human  Society.'  The  State  is 
the  all-comprehensive,  and  therefore  the  one  and  only, 
expression  of  that  common  life  which  stands  above  the 
life  of  the  individual. 

State  and  This  thought,  it  is  true,  came  at  once  into  conflict 
with  the  ascription  of  a  higher,  or  even  an  equal, 
right  to  the  Church.  And  it  was  only  with  a  great 
saving-clause  for  the  rights  of  the  Church  that  the 
prevalent  doctrine  of  the  Middle  Age  received  the 
antique  idea  of  the  State.  Still  in  the  fourteenth  and 
fifteenth  centuries  theory  was  preparing  the  way  for 
the  subsequent  absorption  of  Church  in  State.  One 
medieval  publicist  there  was  who  dared  to  project  a 
system,  logically  elaborated  even  into  details,  wherein 
the  Church  was  a  State  Institution,  Church  property 
was  State  property,  spiritual  offices  were  offices  of 
State,  the  government  of  the  Church  was  part  of  the 


The  Begirmiiigs  of  the  Modern  State,  95 


government  of  the  State,  and  the  sovereign  Eccle- 
siastical Community  was  identical  with  the  Political 
Assembly  of  the  Citizens.  He  was  Marsilius  of 
Padua^^.  No  one  followed  him  the  whole  w^ay.  How- 
beit,  isolated  consequences  of  the  same  principle  were 
drawn  even  in  the  Middle  Age  by  other  opponents 
of  the  Hierarchy.  Already  an  unlimited  power  of 
suppressing  abuses  of  ecclesiastical  office  was  claimed 
for  the  State^'".  Already,  with  more  or  less  dis- 
tinctness, Church  property  was  treated  as  public  pro- 
perty and  placed,  should  the  salus  ptiblica  require  it, 
at  the  disposal  of  the  State^-*.  Already  powers  of 
the  State  which  reach  far  down  even  into  the  internal 
affairs  of  the  Church  were  being  deduced  from  the 
demand  that  in  temporal  matters  the  Church  should 
be  subject  to  the  temporal  Magistrate^'^  Already  the 
classical  sentence  which  told  how  the  ius  sacrum  was 
a  part  of  the  ius  publictLin  was  once  more  beginning 
to  reveal  its  original  meaning 

If,  however,  we  leave  out  of  sight  the  State's  rela- Jtate  and 

'  ^  .  Empire. 

tion  to  the  Church,  we  see  that,  when  Medieval 
Doctrine  first  takes  shape,  the  idea  of  the  State,  which 
had  been  derived  from  the  Antique  World,  was  en- 
feebled and  well-nigh  suffocated  by  the  consequences 
that  were  flowing  from  the  medieval  idea  of  the  Empire  : 
an  idea  which  itself  was  being  formulated  by  theory. 
The  thought  of  a  concentration  at  a  single  point  of  the 
whole  life  of  the  Community  not  only  stood  in  sharp 
contradiction  to  actual  facts  and  popular  opinions,  but 
also  was  opposed  in  theory  to  what  might  seem  an 
insurmountable  bulwark,  namely  to  the  medieval 
thought  of  an  harmoniously  articulated  Universal  Com- 
munity whose  structure  from  top  to  bottom  was  of  the 
federalistic  kind^^\  Nevertheless  that  antique  concept 
of  the  State,  when  once  it  had  found  admission,  worked 


g6  Political  Theories  of  the  Middle  Age. 


and  worked  unceasingly  and  with  deadly  certainty 
until  it  had  completely  shattered  this  proud  edifice  of 
medieval  thought.  We  may  see  theory  trying  to  hold 
fast  the  mere  shadow  of  this  stately  idea,  even  when 
what  should  have  corresponded  to  it  in  the  world  of 
fact,  the  Medieval  Empire,  had  long  lain  in  ruins. 
And  so  also  we  may  see  in  theory  the  new  edifice  of 
the  Modern  State  being  roofed  and  tiled  when  in  the 
world  of  fact  just  the  first  courses  of  this  new 
edifice  are  beginning  to  arise  amidst  the  ruins  of  the 
old. 

Definition  When  Aristotle's  Politics  had  begun  their  new  life> 
State.  the  current  definition  taught  that  the  State  is  the 
highest  and  completest  of  Communities  and  a  Com- 
munity that  is  self-sufficing^^^  It  is  evident  that,  so 
soon  as  men  are  taking  this  definition  in  earnest,  only 
some  one  among  the  various  subordinated  and  super- 
ordinated  Communities  can  be  regarded  as  being  the 
State.  For  a  while  this  logical  consequence  might  be 
evaded  by  a  grossly  illogical  device.  The  ttoXi?  or 
civitas  that  the  ancients  had  defined  was  discovered  by 
medieval  Philosophy  in  a  medieval  town,  and,  by  virtue 
of  the  ideal  of  the  organic  structure  of  the  whole 
Human  Race,  the  community  of  this  ttoXi?  or  civitas 
was  subordinated  to  a  regnum  and  to  the  imperiiim : 
that  is,  to  higher  and  wider  communities  in  which  it 
found  its  completion  and  its  limitations.  Thus,  no 
sooner  has  the  medieval  thinker  given  his  definition, 
than  he  is  withdrawing  it  without  the  slightest  embar- 
rassment :  his  superlative  becomes  a  comparative,  and 
the  absolute  attribute  becomes  relative^^.  Then,  on 
the  other  hand,  the  lawyers,  with  the  Corpus  luris 
before  them,  explained  that  the  Empire  is  the  one  true 
State^^^;  but  they  defined  civitas  dixxd  popultcs  and  even 
regnum  in  such  a  manner  that  these  terms  could  be 


The  Beginnings  of  the  Modern  State.  97 


applied  to  provinces  and  to  rural  or  urban  communes^^^; 
and  then,  as  a  matter  of  fact,  they  went  on  applying  the 
concept  of  '  The  State '  to  communities  that  were  much 
smaller  than  the  Empire^l  Still  the  antique  idea, 
when  once  it  had  been  grasped,  was  sure  to  triumph 
over  this  confused  thinking.  Indeed  we  may  see  that 
the  Philosophic  Theory  of  the  State  often  sets  to  work 
with  the  assumption  that  there  cannot  be  two  States 
one  above  the  other,  and  that  above  the  State  there  is 
no  room  for  a  World-State,  while  below  the  State 
there  is  only  room  for  mere  communes*^'.  Then  in 
Jurisprudence,  from  the  days  of  Bartolus  onwards, 
an  ever  sharper  distinction  was  being  drawn  between 
communities  which  had  and  those  which  had  not  an 
external  Superior,  and  communities  of  the  latter  kind 
were  being  placed  on  a  level  with  the  Imperium^'^. 
The  differences  between  civitas,  regnum  and  imperium 
became  mere  differences  in  size  instead  of  being  joints 
in  the  organic  articulation  of  a  single  body,  and  at  the 
same  time  the  concept  of  the  State  became  the  ex- 
clusive property  of  a  community  which  recognizes  no 
external  superior  {universitas  superio7'em  non  recog- 
noscens)^^. 

Thus  already  in  the  Middle  Age  the  idea  of  the  The  state 

o  '11  "1  1     •  11  •  other 

State  arrived  at  theoretical  completion,  and  the  attri-  Communi- 
bute  of  External  Sovereignty  became  the  distinguish- 
ing  mark  of  the  State.  The  Imperiitm  Mtmdi,  which 
rose  above  the  Sovereign  States,  had  evaporated  into 
an  unsubstantial  shadow,  and  at  any  rate  was  stripped 
of  the  character  of  a  State,  even  when  its  bare  exist- 
ence was  not  denied.  For  States  within  the  State 
there  was  thenceforth  no  room,  and  all  the  smaller 
groups  had  to  be  brought  under  the  rubric  '  Communes 
and  Corporations'^. 

From  the  concentration  of  '  State  Life '  at  a  single 

M.  7 


98  Political  Theories  of  the  Middle  Age, 

Precarious  point  there  by  no  means  follows  as  logically  necessary 
Commun?-  a  Similar  concentration  of  all  '  Community  Life.'  The 
the  s^^\e^"  medieval  idea  of  the  organic  articulation  of  Mankind 
might  live  on,  though  but  in  miniature,  within  each 
separate  State.  It  might  become  the  idea  of  the 
organic  articulation  of  the  Nation.  And  up  to  a 
certain  degree  this  actually  happened.  The  Romano- 
Canonical  Theory  of  Corporations,  although  it  decom- 
posed and  radically  transmuted  the  German  notion  of 
the  autonomous  life  of  communities  and  fellowships, 
always  insured  to  the  non-sovereign  community  a  cer- 
tain independent  life  of  its  own,  a  sphere  of  rights 
within  the  domain  of  Public  Law,  a  sphere  that 
belonged  to  it  merely  because  it  was  a  community,  and 
lastly,  an  organic  interposition  between  the  Individual 
and  the  Community  of  All.  .  Even  among  political 
theorists  there  were  not  wanting  some  who  in  the  last 
centuries  of  the  Middle  Age — centuries  brimful  of 
vigorous  corporate  life — sought  to  oppose  to  that  cen- 
tralization which  had  triumphed  in  the  Church  and  was 
threatening  the  State,  a  scientific  statement  of  the  idea 
of  corporative  articulation  and  a  logically  deduced 
justification  of  the  claims  that  could  be  made  on  behalf 
of  the  smaller  groups  as  beings  with  rights  of  their 
own  and  an  intrinsic  value*"'. 
Centraiiza-  For  all  this,  however,  even  in  the  Middle  Age  the 
Communal  drift  of  Theory  set  incessantly  towards  an  exaltation 
of  the  Sovereignty  of  the  State  which  ended  in  the 
exclusive  representation  by  the  State  of  all  the  common 
interests  and  common  life  of  the  Community.  In  this 
direction  Philosophy  with  giant  strides  was  outstrip- 
ping Jurisprudence. 
Phiio-  Por  those  rio^hts  of  Lordship  of  Germanic  orig^ia 

sophic  ... 

theory  and  which  subsisted  within  the  State  and  beneath  the. 
l^ordship.  Sovereign's  Power,  Jurisprudence  might  long  provide 


The  Beginnings  of  the  Modern  State.  99 


a  secure  place.  It  had  accepted  the  ius  feudorimi,  and 
was  prepared  to  treat  offices  as  objects  of  proprietary 
rights.  But  Political  and  Philosophical  Theories  could 
find  no  room  whatever  in  their  abstract  systems  for 
feudal  and  patrimonial  powers^".  On  the  contrary,  this 
was  just  the  point  whence  spread  the  thought  that  all 
subordinate  public  power  is  a  mere  delegation  of  the 
Sovereign  Power ^'l  Also  this  was  just  the  point 
whence  spread  a  process  which  transmuted  the  me- 
dieval concept  of  Office,  in  such  wise  that  every  office 
appeared  merely  as  a  commission  to  use  the  Power  of 
the  State  :  to  use,  that  is,  in  a  certain  manner,  a  power 
w^hich  is  in  substance  one  and  untransferable.  When 
that  process  is  completed,  every  officer  appears  as  the 
freely  chosen  instrument  of  the  Sovereign  WilP^\ 

A  similar  attitude  was  taken  by  the  abstract  theories  Phiio- 
of  Politics  and  Philosophy  in  relation  to  those  indepen-  theory  and 
dent  Rights  of  Fellowships  which  had  their  source  in  of  Fdiow- 
Germanic  Law.     For  a  long  time  Jurisprudence  was  ^^^p^* 
prepared  to  give  them  a  home ;  but  Philosophical 
Theory  looked  askance  at  them.    The  Doctrine  of  the 
State  that  was  reared  upon  a  classical  ground-work 
had  nothing  to  say  of  groups  that  mediated  between 
the  State  and  the  Individual.    This  being  so,  the 
domain  of  Natural  Law  was  closed  to  the  Corporation, 
and  its  very  existence  was  based  upon  the  ground  of  a 
Positive  Law  which  the  State  had  made  and  might  at 
any  time  alter.    And  then  as  the  sphere  of  the  State's 
Might  on  the  one  hand,  and  the  sphere  of  the  Indivi- 
dual's Liberty  on  the  other,  became  the  exclusive  and 
all-sufficing  starting-points  for  a  Philosophy  of  Law, 
the  end  was  that  the  Corporation  could  find  a  place  in 
Public  Law  only  as  a  part  of  the  State  and  a  place  in 
Private  Law  only  as  an  artificial  Individual,  while  all 
in  actual  life  that  might  seem  to  conflict  with  this 

7—2 


loo  Political  Theories  of  the  Middle  Age. 


doctrine  was  regarded  as  the  outcome  of  privileges 
which  the  State  had  bestowed  and  in  the  interest  of  the 
public  might  at  any  time  revoke.  While  the  Middle 
Age  endured,  it  was  but  rarely  that  the  consequences 
of  these  opinions  were  expressly  drawn^^.  Howbeit, 
Philosophic  Doctrine  was  on  the  one  hand  filling  itself 
full  of  the  antique  idea  of  the  State,  and  on  the  other 
hand  it  was  saving  therefrom  and  developing  the 
Christiano-Germanic  idea  of  Freedom  and  depositing 
this  in  the  theory  of  Natural  Law.  And  as  this  work 
proceeded  towards  the  attainment  of  ever  more  distinct 
results,  the  keener  were  the  weapons  which  Medieval 
Doctrine  was  forging  for  that  combat  which  fills  the 
subsequent  centuries.  A  combat  it  was  in  which  the 
Sovereign  State  and  the  Sovereign  Individual  con- 
tended over  the  delimitation  of  the  provinces  assigned 
to  them  by  Natural  Law,  and  in  the  course  of  that 
struggle  all  intermediate  groups  were  first  degraded 
into  the  position  of  the  more  or  less  arbitrarily 
fashioned  creatures  of  mere  Positive  Law,  and  in  the 
end  were  obliterated. 


NOTES. 


1.  Too  little  attention  has  hitherto  been  paid  to  the  influence  Import- 
on  political  theory  of  the  work  done  by  the  Legists  and  Canonists.  jJJJ-^jg^ 
Really  it  is  from  their  great  commentaries  that  the  purely  poUtical 
writers  borrow  their  whole  equipment  of  legal  ideas.  Thus  it  is 
characteristic  that  nothing  is  said  of  Bartolus  and  much  is  made  of 
Ubertus  de  Lampugnano  and  his  lecture  on  the  Empire  delivered  at 
Prague  in  1380  {ZeitscJir.  f.  gesch.  Rechtswis.  11.  pp.  246 — 256).  But 

this  is  a  reproduction  almost  verbatim  of  Bartolus's  Commentary  on 
1.  24  Dig.  de  capt.  49,  15.  Only  a  few  ornaments  have  been  added, 
such  as  the  jest  about  the  Greek  Emperor  being  still  an  Emperor  at 
least  in  that  sort  in  which  the  king  on  the  chess-board  is  a  king. 

2.  This  sequence  of  ideas  may  best  be  seen  in  Dante's  work,  Macro- 
where  it  serves  as  a  foundation  for  his  Theory  of  the  State.    Comp.  ^jj^q^^^ 
e.g.  Monarchia,  i.  c.  7  (also  c.  6)  on  the  correspondence  between  the  cosm. 
universitas  himana  with,  on  the  one  hand,  the  World-Whole,  and,  on 

the  other  hand,  those  smaller  communities  whose  totii77i  this  uni- 
versitas is.  But  Dante  takes  the  core  of  this  thought  from  Aquinas : 
see  especially  Summa  contra  gentiles  iii.  q.  76 — 83,  and  De  regimine 
principum  i.  c.  12.  And  long  before  this  we  meet  the  same  ideas 
similarly  formulated ;  in  particular  the  parallelism  of  macrocosm  and 
microcosm  :  thus  in  Joh.  Saresb.  Polycr.  (see  below  Note  10)  and 
Hugo  Floriac.  De  regia  et  sacerdot.  pot.  i.  c.  i.  1'hen  compare 
Alvar.  Pelag.  De  planctu  eccl.  i.a  37  R,  and  Somn.  Virid.  i.  c.  37 — 48. 
The  last  splendid  example  of  the  development  of  this  fundamental 
thought  is  the  'Catholic  Concordance'  of  Nicolas  Cusanus ;  especially 
I.  c.  I — 4. 

3.  The  application  to  the  Order  of  Human  Society  of  pro-  Unity  as 
positions  derived  from  Augustine  and  teaching  the  principle  of  ^^'^^J^^ 

'  Unity  before  Plurahty'  is  effected  by  Aquinas  in  particular.  He 
employs  the  maxim  OfJinis  viidtitudo  derivatur  ab  tino,  and  sees  the 


I02  Political  Theories  of  the  Middle  Age, 


prototypes  of  the  State  in  the  World  with  its  One  God,  in  the 
Microcosm  of  Man  with  its  single  soul,  in  the  unifying  principle 
which  prevails  among  the  powers  of  the  soul,  and  which  prevails  also 
in  the  natural  body  and  in  the  animal  kingdom.  See  De  reg.  princ. 
I.  c.  2,  3,  12  ;  also  Summa  contra  gentil.  iii.  q.  8i.  But  the  kernel 
of  this  mode  of  thought  is  older ;  e.g.  Hugo  Floriac.  i.  c.  i  brings  in 
a  comparison  with  the  unity  of  the  World-Whole  and  with  that  of 
the  human  body.  Similar  thoughts  are  developed  by  Aegid.  Rom. 
De  regim.  princ.  iii.  2,  c.  3  :  since  all  miiltitudo  ab  uno  procedit,  it 
must  in  u?iu?n  aliquod  reduci:  since  among  the  heavenly  bodies  we 
see  the  rule  of  the  primum  mobile^  in  the  body  the  rule  of  the  heart, 
in  a  compound  body  the  rule  of  one  element,  among  bees  the  rule 
of  a  queen,  so  the  State  needs  a  single  government.  With  higher 
genius,  Dante,  Mon.  i.  c.  5 — 16,  bases  the  demand  for  a  uniim 
regens  in  every  Whole  on  the  types  of  an  ordi?iatw  ad  unu7n,  found  in 
the  World-Whole  (c.  7),  among  the  heavenly  bodies  (c.  9),  and  every- 
where on  earth.  Similar  thoughts  in  Alv.  Pel.  i.  a.  40  ;  Joh.  Paris, 
c.  1:  Anton.  Ros.  11.  c.  5 — 7;  Laelius  (in  Goldast  11.  p.  1595  fif.)j 
Petrus  de  Andlo  i.  c.  8.  Then  a  mystical  development  is  given  to 
the  idea  by  Nicolas  Cusanus,  who  finds  an  image  of  the  Trinity 
throughout  the  Unity  of  the  articulated  world  :  thus  God,  Angels, 
Men  in  the  Church  Triumphant ;  Sacrament,  Priesthood,  Folk  in  the 
Church  Militant ;  Spirit,  Soul,  Body  in  Man.  See  Cone.  Cath. ;  and 
also  De  auctor.  praes.  in  Diix,  i.  p.  475  ff. 
Partial  4-    See  Thom.  Aq.  Comm.  ad  Ethic,  lect.  i  (Op.  ed.  Parm.  xxi. 

Wholes,  2) :  hoc  totum,  quod  est  civilis  multitudo  vel  domestica  familia, 
habet  solam  unitatem  ordinis,  secundum  quam  non  est  aliquid 
simpliciter  unum ;  et  ideo  pars  eius  totius  potest  habere  operationem 
quae  non  est  operatio  totius  habet  nihilominus  et  ipsum  totum 
aliquam  operationem,  quae  non  est  propria  alicuius  partium.  De  reg. 
princ.  I.  c.  i  :  since  the  Many  bound  together  '  secundum  propria 
quidem  differunt,  secundum  autem  commune  uniuntur,'  there  must  be 
'moventia  ad  proprium  bonum  unius  cuiusque,'  as  well  as  a  'movens 
ad  bonum  commune  multorum.' 
jhe  5-         hig^"'  ternis  Dante,  c.  15,  lauds  the  Principle  of  Unity  as 

Praises  the  source  of  all  good,  for  the  viaxime  ens  must  be  the  niaxime  unum, 
°  and  the  f?iaxime  umwi  must  be  the  j?iaxune  bonum.    Similarly  Thom. 

Aq.  De  reg.  princ.  i.  c.  3  ;  comp.  Summa  contra  gentil.  iv.  c.  i  ff. 
Nay,  '  binarius  numerus  infamis.'  Papal  theory  accuses  its  oppo- 
nents of  heresy,  since  they  '  ponunt  dua  principia.'  See  e.g. 
Boniface  VIII.  in  the  bull  Unam  sanctam  of  1302  (c,  i  Extrav. 
comm.  I.  8),  and  the  letter  in  Raynald.  Ann.  1302  nr.  12  ;  also  what 


Notes. 


103 


is  said  by  the  Clerk  in  Quaestio  in  utramque  part.  p.  105  ;  Joh. 
Andr.  upon  c.  13,  X.  4,  17  ;  Panorm.  upon  c.  13,  X.  2,  i. 

6.  Dante,  i.  c.  3  and  4,  endeavours  to  define  the  common  The 

purpose  of  Mankind.  He  finds  it  in  the  continuous  activity  of  the  P^^'pose  of 
^  .  Corporate 

whole  potency  of  Reason,  primarily  the  speculative,  secondarily  the  Mankind. 

practical.    This  is  the  'operatio  propria  universitatis  humanae';  the 

individual  man,  the  household,  the  civitas  and  the  regnum  particulare 

are  insufficient  for  it.    For  the  achievement  of  it  only  a  World-Realm 

will  serve,  and  the  propinquissimum  medium  is  the  establishment  of 

an  Universal  Peace.    Comp.  iii.  c.  16. 

7.  Already  in  829  the  episcopal  utterances  about  Church  and  The  ^ 
State  at  the  Councils  of  W  orms  and  Pans,  afterwards  appended  to  church 
the  Capitulary  of  Worms,  begin  with  the  principle  (grounded  on  ^nd  the 
words  of  S.  Paul)  *  universalis  sancta  ecclesia  Dei  unum  corpus  wealth  of 
manifeste  esse  credatur  eiusque  caput  Christus.'    On  this  follows  Mankind, 
the  doctrine,  warranted  by  Gelasius  and  Fulgentius,  that  '  principaliter 

itaque  totius  sanctae  Dei  ecclesiae  corpus  in  duas  eximias  personas, 
in  sacerdotalem  videlicet  et  regalem...divisum  esse  novimus';  and 
lastly  the  professional  duties  of  the  priesthood  on  the  one  hand  and 
the  kingship  on  the  other  are  particularized.  See  Concil.  Paris,  in 
Mansi  xiv.  p.  605  fif.;  Const.  Worm,  in  Mon.  Germ.  Leg.  i.  p.  333, 
c.  2 — 3,  p.  333  ff.,  p.  346  ff. ;  also  Hefele  Conciliengesch.  iv.  p.  57  if. 
and  72  ff.  To  the  like  effect  Jonas  of  Orleans  (ob.  843),  De  insti- 
tutione  regia,  in  d'Achery,  Spicileg.,  ed.  nov.  Paris  1723,  i.  p.  324. 
Similar  thoughts  from  Agobard  of  Lyons  (ob.  842)  and  Hinkmar  of 
Reims  (ob.  882).  After  this  the  picture  of  Mankind  as  one  body 
with  a  God-willed  spiritual  and  temporal  constitution  is  common. 
Thus  in  Gregor.  VIL,  e.g.  lib.  i.  ep.  19,  ann.  1073  ;  Ivo  of  Chartres, 
e.g.  ep.  106,  p.  125,  ep.  214,  p.  217  ff.;  S.  Bernard,  ep.  244  ad  Conr. 
Reg.  ann.  1146,  p.  440  ff.  (also  in  Goldast  11.  67 — 68);  Gerhoh 
of  Reichersberg,  De  corrupto  statu  eccl,  praef.  p.  11  ;  Thomas  of 
Canterbury,  ep.  179,  p.  652  ;  Hugo  Horiac.  i.  c.  i  and  11.  pp.  46, 
50  ;  Innocent  HL,  e.g.  Registr.  sup.  neg.  Rom.  Imp.  ep.  2,  18  and 
79)  PP-  997)  1012,  1162.  Throughout  Aquinas:  see  e.g.  Summa 
Theol.  II.  I,  q.  81,  a.  i  (multi  homines  ex  Adam  derivati  sunt  tan- 
quam  multa  membra  unius  corporis)  and  iii.  q.  8,  a.  i  and  2  (genus 
humanum  consideratur  quasi  unum  corpus,  quod  vocatur  mysticum, 
cuius  caput  est  ipse  Christus  et  quantum  ad  animas  et  quantum  ad 
corpora) ;  Lect.  2  ad  Rom.  12  ;  Lect.  3  ad  i  Corinth.  12.  See  also 
Vincent.  Bellov.  Spec,  doctr.  lib.  vii.  c.  31  (duo  latera  corporis  unius). 
On  innumerable  occasions  Theologians  and  Canonists  employ  the 
term  ecclesia  to  describe  a  Realm  of  All  Mankind,  including  its 


I04   Political  Theories  of  the  Middle  Age, 


Priesthood 

and 

Realm. 


Temporal 
Power  of 
the  Pope 
and  the 
Principle 
of  Unity. 


temporal  constitution:  e.g.  August.  Triumph,  i.  q.  i,  a.  6;  Joh.  Andr. 
upon  c.  13,  X.  4,  17;  Panorm.  upon  c.  13,  X.  2,  i.  On  the  other 
hand,  Engelbert  of  Volkersdorf,  De  ortu  et  fine  c.  15,  17  and  18,  is 
the  first  expressly  to  argue  that  Mankind  is  one  people  with  only 
one  true  law  and  one  true  consetisus,  and  must  therefore  be  one 
true  respublica.  Then  to  the  like  effect  Dante,  Mon.  i.  c.  3,  5 — 9. 
Lupoid.  Bebenb.,  c.  15.  Petrarca,  Ep.  vii.  and  viii.  Alvar.  Pelag.  i. 
a.  13  F,  a.  37  Q  and  R,  a.  40  and  45  (unum  corpus  mysticum,  una 
communitas  et  unus  populus,  una  civilitas  et  politia  Christiana). 
Quaestio  in  utramque  partem,  p.  102  ff.  Ockham,  Octo  qu.  iii.  c.  i 
(totum  genus  humanum  est  unus  populus ;  universitas  mortalium  est 
una  communitas  volentium  habere  communionem  ad  invicem)  and 
c.  9;  also  Dial.  iii.  tr.  2,  1.  i,  c.  i  (univ.  mortalium,  unus  populus, 
unus  grex,  unum  corpus,  una  civitas,  unum  collegium,  unum  regnum ; 
connexio  inter  omnes  mortales) ;  ibid.  1.  3,  c.  17  and  22.  Somn. 
Virid.  II.  c.  305 — 312  ;  Nic.  Cus.  Cone.  Cath.  iii.  c.  i  and  41. 

8.  As  is  shewn  by  all  the  passages  cited  in  our  last  note,  the 
whole  Middle  Age  is  filled  by  the  thought  which  finds  a  typical 
expression  in  the  Summa  mag.  Stephani  Tornacensis  (1165 — 1177) 
praef. :  in  eadem  civitate  sub  uno  rege  duo  populi  sunt,  et  secundum 
duos  populos  duae  vitae,  duo  principatus,  duplex  iurisdictionis  ordo 
procedit :  the  civitas  is  the  ecclesia,  the  king  is  Christ,  the  two  folks 
are  the  clergy  and  the  laity,  the  two  lives  are  the  spiritual  and  the 
temporal,  the  two  principatus  are  sacerdotium  et  regnum^  the  two 
spheres  of  law  the  divinum  et  humanum.  References  to  the  spiritual 
and  bodily  sides  of  humanity  become  common,  and  the  purposes  of 
the  two  Orders  are  found  respectively  in  this  world  and  the  next. — 
Occasionally  Science,  the  studiu??i,  is  introduced  as  a  third  and  inde- 
pendent province  of  life.  See  Ptolom.  Luc.  De  reg.  princ.  11.  c.  16 
in  fine  :  in  qualibet  monarchia  ab  initio  saeculi  t7'ia  se  invicem  comi- 
tata  sunt :  divinus  cultus,  sapientia  scholastica  et  saecularis  potestas. 
Jordan.  Osnabr.  c.  5,  p.  71  :  the  Romans  received  the  sacerdotium^ 
the  Germans  the  imperium,  the  French  the  studium;  these  are  the 
three  courses  in  the  edifice  of  the  Catholic  Church  ;  the  sacerdotium 
at  Rome  is  the  foundation,  the  studium  at  Paris  the  roof,  the  imperium 
at  Aachen,  Aries,  Milan  and  Rome  the  four  walls. 

9.  When  Boniface  VI I L  [in  the  famous  bull  Unam  Sanctam] 
put  the  sum  and  substance  of  the  ecclesiastical  claims  into  a  com- 
pendious form  (c.  I,  Extra  v.  com.  i.  8),  he  placed  in  the  forefront 
an  emphatic  statement  of  the  principle  of  Unity.  But  the  same 
principle  had  long  been  the  base  of  the  assertions  of  the  popes  and 
their  partizans.    The  argument  that  could  be  drawn  from  the  superior 


Notes. 


105 


worth  of  Spiritual  Power  could  become  a  proof  of  the  subjection  of 
Temporal  Power  only  by  virtue  of  the  self-evident  proposition  that  an 
ordinatio  ad  unum,  in  the  sense  that  we  have  explained  above,  is 
requisite  for  all  mankind.  The  consequences  deduced  from  a  com- 
parison of  the  two  Powers  to  body  and  soul,  or  sun  and  moon,  would 
have  lacked  cogency,  had  any  doubt  been  felt  touching  the  validity  of 
a  comparison  of  the  whole  body  of  mankind  to  a  single  organism  or 
to  a  celestial  vault  enlightened  by  a  single  luminary.  Also  the  argu- 
ment which  speaks  of  the  two  swords  is  only  cogent  if  we  may  take 
for  granted  that  God  has  destined  both  swords  for  the  protection  of 
a  one  and  only  Church.  And  so  it  is  with  other  arguments.  Then 
from  the  fourteenth  century  onwards  appeals  to  the  argumenium 
unitatis,  coupled  with  references  to  the  decretal  of  Boniface,  are 
freely  made  by  the  ecclesiastical  party.  We  even  see  the  downright 
statement  that,  since  it  would  be  heretical  to  derive  the  universe 
from  two  principles,  so  also  it  must  be  heretical  to  suppose  two 
co-equal  Vicars  on  earth  (ponere  duos  vicarios  aequales  in  terris). 
See  e.g.  John  Andr.  upon  c.  13,  X.  4,  17  ;  Panorm.  upon  c.  13, 
X.  2,  1  ;  August.  Triumph,  i.  q.  i,  a.  6  and  q.  22,  a.  3  (the  tota 
machina  mundialis  is  single,  therefore  there  can  be  but  one  pri?ici- 
patus).  Petrus  de  Andlo  11.  c.  9.  See  also  the  arguments  drawn 
from  the  unitas principii  by  the  Clerk  in  Somn.  Virid.  i.  c.  37,  43,  45, 
47,  loi  ;  also  the  arguments  for  and  against  unity  in  Quaest.  in 
utramque  partem,  p.  102  ff. ;  in  Ockham,  Octo  qu.  i.  c.  i,  5,  18; 
III.  c.  I  and  9,  also  c.  8 ;  Dial.  iii.  tr.  i,  1.  2,  c.  i  and  30 ;  and 
Anton.  Rosell.  i.  c.  3,  4,  19,  39—55. 

10.  This  absorption  of  the  State  by  the  Church  is  already  clearly  Absorp- 
proclaimed,  so  far  as  concerns  its  first  principle,  by  Gregory  VII.  g°^tg°[j^ 
Nothing  less  than  this  lies  in  the  extension  that  he  gives  to  the  Church. 
*potestas  ligandi  in  coelo  et  in  terra'  committed  to  S.  Peter,  and  to 
the  '  Pasce  oves  meas.'  He  asks  (Registrum,  lib.  4,  ep.  2,  ann.  1076, 
p.  242 — 243)  :  '  Quod  si  sancta  sedes  apostolica  divinitus  sibi  collata 
principali  potestate  spiritualia  decernens  diiudicat,  cur  non  ^t  saecu- 
lariaT  And  again  (lib.  8,  ep.  21,  ann.  1080,  p.  279):  *  Cui  ergo 
aperiendi  claudendique  coeli  data  potestas  est,  de  terra  iudicare  non 
licet?'  And  again  (lib.  4,  ep.  24,  ann.  1077,  p.  455):  'Si  enim 
coelestia  et  spiritualia  sedes  b.  Petri  solvit  et  iudicat,  quanto  magis 
terrena  et  saecularia.'  Compare  also  lib.  4,  ep.  23,  p.  279,  and  lib.  i, 
ep.  63,  p.  82,  and  the  statement  of  papal  rights  in  the  Dictatus 
papae  11.  55^,  p.  174 — 6. — But  the  system  is  for  the  first  time 
scientifically  developed  by  John  of  Salisbury.  For  him  the  respublica 
is  a  body  fashioned  by  God  in  the  likeness  of  the  macrocosm  of 


io6  Political  Theories  of  the  Middle  Age. 


Nature  and  the  microcosm  of  man  ;  in  it  the  Priesthood,  being  the 
Soul,  rules  the  rest  and  has  even  to  govern,  erect,  depose  the  Head  ; 
Polycrat.  iv.  c.  i — 4  and  6,  v.  c.  2 — 6,  vi.  c.  21.  Similarly  Thomas 
of  Canterbury,  ep.  179  ad  Henr.  II.  Reg.  Angl,  p.  652:  'Ecclesia 
enim  Dei  in  duobus  constat  ordinibus,  clero  et  populo;...in  populo 
sunt  reges,  principes,  duces,  comites  et  aliae  potestates,  qui  saecularia 
habent  tractare  negotia,  ut  totum  reducant  ad  pacem  et  unitatem 
Ecclesiae.'  See  also  Ivo  of  Chartres,  ep.  106,  p.  125;  S.  Bernard, 
ep.  256,  and  De  consid.  lib.  4,  c.  3  ;  S.  Anselm.  Cantuar.  Comm.  in 
Matth.  c.  26.  Then  Innocent  III.  gave  this  doctrine  the  juristic 
shape  in  which  it  passed  into  the  Canon  Law.  See  especially  c.  34, 
X.  I,  6  ;  c.  6,  X.  I,  33  ;  c.  13,  X.  2,  i  ;  c.  13,  X.  4,  17  ;  also  lib.  2, 
ep.  202,  ann.  11 99,  in  Migne,  vol.  214,  p.  759  :  Petro  non  solum 
universalem  ecclesiam,  sed  totum  reliquit  saeculum  gubernandum. 
Innocent  IV.  expressed  the  same  thought  in  a  yet  sharper  form. 
See  the  letter  to  Frederick  II.  in  v.  Wessenberg,  Die  grossen  Kirchen- 
versammlungen,  vol.  i.  (2  ed.  Konstanz,  1845),  p.  305 — 6.  Also 
Comm.  on  c.  13,  X.  4,  17.  In  principle  Thom.  Aquinas  stands  on 
the  same  ground.  See  De  reg.  princ.  i.  c.  14 — 15  ;  Summa  Theol. 
II.  2,  q.  60,  a.  6,  ad.  3  ;  Opusc.  contra  errores  Graecorum,  libell.  11. 

32 — 38  (the  Pope  head  of  the  respublica  Christi).  Yet  more 
strongly,  Aegidius  Romanus,  De  pot.  eccl.  i.  c.  2 — 9,  11.  c.  4 — 5, 
10 — II,  III.  c.  12.  When  Boniface  VIII.  has  given  to  this  doctrine 
a  final  form  [Unam  sanctam,  c.  i.  Extra  v.  com.  i.  8]  it  is  widely 
spread  abroad  by  the  canonists.  See  in  particular  Aug.  Triumph,  i. 
q.  I,  a.  6  (the  ecclesia  is  identical  with  the  communitas  totius  orbis, 
which  comprehends  both  the  corporale  et  spirituale)  and  a.  8.  Alvar. 
Pelag.  I.  a.  13  and  37  :  the  Church  has  the  spiritual  and  temporal 
power.  Also  a.  40  :  she  is  the  true  politia^  of  which  the  State  is  only 
part ;  both  powers  are  '  partes  integrales  unius  potestatis ' ;  they  have 
the  same  ji7iis  supranaturalis,  since  the  temporal  is  but  a  mean  of 
the  spiritual.  Also  a.  59  d:  'partes  distinctae  unius  potestatis.' 
Insuffi-  See  especially  Thom.   Aquin.  Summa  contra  gentil.  iv. 

ciency  of   c.  76,  p.  625 — 6:  a  refutation  of  the  argument  that  Christ's  headship 
\dsible      would  suffice  to  secure  the  requisite  unity:  His  corporal  presence 
Unity.       should  be  represented  by  a  Monarch.    Also  Alvar.  Pel.  i.  a.  40  d 
(against  Dante). 

Temporal  12.  Among  the  Popes  themselves  this  is  expressly  proclaimed 
Sovereign-  ^y  Gregory  VII.  (see  passages  cited  in  Note  10;  also  lib.  i.  ep.  55% 
Pope.  ^    ann.  1075,  p.  174:  quod  solus  possit  uti  imperialibus  insigniis); 

also  by  Innocent  III.  (see  Note  10;  in  particular,  in  c.  13,  X.  4,  17 
he  deduces  the  proposition  'quod  non  solum  in  Ecclesiae  patrimonio, 


Notes. 


super  quo  plenam  in  temporalibus  gerimus  potestatem,  verum  etiam 
in  aliis  regionibus,  certis  causis  inspectis,  temporalem  iurisdictionem 
casualiter  exercemus'  from  the  divine  mandate  that  he  has  as  'eius 
vicarius,  qui  est  sacerdos  in  aeternum  secundum  ordinem  Melchise- 
dech,  constitutus  a  Deo  iudex  vivorum  et  mortuorum';  compare 
Reg.  sup.  neg.  Imp.  ep.  i8,  p.  1012:  'vicarius  illius,  cuius  est  terra 
et  plenitudo  eius,  orbis  terrarum  et  universi  qui  habitant  in  eo'); 
Innocent  IV.  (see  Note  10);  Boniface  VIII.  (c.  i,  Extrav.  comm. 
I.  8:  'subesse  Romano  pontifici  omni  humanae  creaturae  declara- 
mus,  dicimus,  definimus  et  pronuntiamus  omnino  esse  de  necessitate 
salutis';  he  called  himself  Caesar  and  Emperor,  comp.  v.  Wessenberg, 
Kirchenversammlungen,  i.  p.  307). — Among  the  Canonists,  already 
in  cent.  xii.  many  say  'Papa  ipse  verus  Imperator';  comp.  Summa 
Colon.  (11 60 — 1 1 70)  and  Paris,  (circ.  1170)  upon  c.  3,  C.  2,  q.  6,  v. 
eoru?n,2indi  c.  7,  C.  2,  q.  3  diet.  Grat.  in  Schulte,  Sitzungsber.  [Vienna 
Acad.]  vol.  64,  pp.  I  IT,  131.  Also  Gloss,  ordin.  upon  c.  i,  Dist.  22, 
V.  coelestis.  So  too  Thom.  Aquinas  says  'nisi  forte  potestati  spiri- 
tual! etiam  saecularis  potestas  coniungatur,  sicut  in  Papa,  qui  utrius- 
que  potestatis  apicem  tenet,  sc.  spiritualis  et  saecularis,  hoc  illo 
disponente  qui  est  sacerdos  et  rex  in  aeternum,  sec.  ordinem 
Melchisedech  etc.';  in  libr.  11.  Sent.  dist.  44,  ad.  4  (Op.  vi.).  Ptolom. 
Luc,  De  regim.  princ.  iii.  c.  10:  Peter  and  his  successors  have  been 
appointed  by  Christ  to  be  both  Priests  and  Kings,  so  that  the  Pope 
is  the  caput  in  corpore  ?nystico  and  from  him  all  the  sense  and  move- 
ment of  the  body  flow:  in  temporals  also,  for  these  depend  upon 
spirituals,  like  body  upon  soul;  ib.  c.  13 — 19.  Similarly  Aegid. 
Rom.  I.  c.  2 — 3;  Aug.  Triumph,  i.  q.  i,  a.  7 — 9;  11.  q.  36;  Petrus 
de  Andlo  11.  c  9.  Yet  more  definitely  Alvar.  Pelag.  i.  a.  13, 
especially  c  and  g;  a.  37,  r  nr.  19  (est  simpliciter  praelatus  omnium 
et  monarcha),  and  Bb  (papa  universalis  monarcha  totius  populi 
Christiani  et  de  iure  totius  mundi);  a.  52;  a.  59  k  (Christ  and  Pope 
are  in  no  wise  two  heads,  but  one  head);  but  in  particular  the 
reasoning  of  a.  40:  (i)  poUtiae  Christianae  est  unus  principatus 
absolute:  (2)  huius  politiae  Christ,  unius  unus  est  princeps  regens  et 
dirigens  eam:  (3)  primus  et  supremus  iste  princeps  politiae  Christ, 
est  Papa.  Opinions  which  in  part  go  yet  further  concerning  the 
verum  dominiian  temporalium  are  stated  and  refuted  by  Joh.  Paris., 
proem,  and  c.  15 — 43;  Ockham,  Octo  qu.  i.  c.  2,  7 — 19;  11.  c.  7; 
Dial.  III.  tr.  i,  1.  i,c.  2  ff. :  1.  2,  c.  i  ff. ;  tr.  2,  1.  i,  c.  18  ff.;  Ant.  Ros.  i. 
c.  I — 19,  and  c.  39 — 55.  Comp.  also  the  Clerk  in  Somn.  Virid. 
c.  6,  8,  10,  12,  77,  85,  89,  III,  117,  151,  163. 

13.    From  Gregory  VII.  onwards  the  Popes  and  their  supporters 


io8  Political  Theories  of  the  Middle  Age. 


Direct  are  unanimous  in  holding  that,  so  far  as  the  substance  is  concerned, 
Uie^Pope  Temporal  as  well  as  the  Spiritual  Power  belongs  to  the  Chair  of 
in  Tern-  Peter,  and  that  the  separation  which  is  commanded  by  divine  law 
poralities.  effects  only  the  Administration,  not  the  Substance.  The  various 
shades  of  opinion  differ  only  as  to  the  extent  of  the  right  of  user 
committed  to  the  temporal  ruler  and  of  the  right  reserved  to  the 
Pope,  and,  in  particular,  as  to  the  definition  of  the  cases  in  which 
the  Pope,  notwithstanding  the  right  committed  to  the  secular 
magistrate,  may  directly  interfere  in  temporal  affairs. — Therefore 
it  is  a  mistake  to  represent  the  great  Popes  as  proclaiming,  and 
the  common  opinion  of  the  later  Middle  i\ge  as  accepting,  only 
that  sort  of  'indirect  power  in  temporalities'  (in  Bellarmine's  sense 
of  these  terms)  which  was  claimed  for  the  i^postolic  See  by  later 
theorists.  This  mistake  has  been  made  by  Hergenrother,  op.  cit. 
421  ff.,  Molitor,  op.  cit.  p.  166  ff.  and  others.  The  words  of 
Innocent  IV.  on  which  Molitor  has  laid  special  weight,  say  merely 
that  as  a  general  rule  the  spiritual  sword  is  not  to  meddle  with  the 
wielding  of  the  temporal,  and  it  is  only  to  this  normal  separation  in 
the  use  of  the  swords  that  Innocent's  words  'directe,  secus  indirecte' 
(c.  13,  X.  2,  i)  refer.  The  statements  to  the  effect  that  the  Pope,  by 
virtue  of  his  spiritual  power,  'per  consequens'  rules  over  temporal 
affairs,  because  and  in  so  far  as  'temporalia  ordinantur  ad  spiritualia 
tanquam  ad  finem,'  make  no  surrender  of  the  fundamental  thought 
of  an  Universal  State  in  which  the  plenitude  of  all  power,  worldly  as 
well  as  spiritual,  is  in  principle  committed  to  the  Pope.  Indeed 
these  same  popes  and  canonists,  as  Molitor  (p.  91  ff.)  admits,  ex- 
pressly assert  the  axiom  that  the  Pope  has  both  swords  and  commits 
one  of  them  to  other  hands  merely  for  use.  With  this  axiom  the 
doctrine  that  would  allow  the  Pope  only  a  potestas  indirecta  is  irre- 
concilable. For  this  reason  even  Torquemada,  despite  his  tendency 
towards  moderation  in  the  statement  of  papal  rights  (Summa  11. 
c.  ii3ff.),  cannot  be  reckoned  among  the  advocates  of  this  doctrine 
of  'indirect  power,'  since  in  plain  words  he  claims  for  the  Pope 
utrumque  gladium^  and  in  radice  the  temporal  power  (c.  114).  As 
a  hint  of  the  doctrine  of  cent.  xvi.  we  might  rather  choose  a  passage 
in  which  Gerson  ascribes  to  the  Church  in  worldly  affairs  'dominium 
quoddam  directivum,  regulativum  et  ordinativum'  (Depot,  ecc.  c.  12; 
Op.  II.  248). 

Inferiority       14-    See  Joh.  Saresb.  IV.  c.  3:  the  Church  has  both  swords: 
*^o'^l"^*     'sed  gladio  sanguinis... utitur per  manum  principis,  cui  coercendorum 
Power.      corporum  contulit  potestatem,  spiritualium  sibi  in  pontificibus  aucto- 
ritate  reservata:  est  ergo  princeps  sacerdotii  quidem  minister  et  qui 


Notes. 


sacrorum  officiorum  illam  partem  exercet,  quae  sacerdotii  manibus 
videtur  indigna.'  Aegid.  Rom.  i.  c.  9;  August.  Triumph,  i.  q.  i, 
a.  4,  q.  43,  a.  2;  Alvar.  Pelag.  i.  a.  13  and  37. 

15.  In  some  form  or  another,  as  might  be  expected,  all  advo- The 
cates  of  the  ecclesiastical  power  maintain,  not  only  the  separation  of  j^aTbeare 
the  two  powers,  but  the  divine  institution  of  the  worldly  Magistrature :  ordained 
for  this  was  a  revealed  truth  [Rom.  xiii.  i;  Matth.  xxii.  21].    So  even 
Gregor.  VII.  lib.  2,  ep.  31,  lib.  3,  ep.  7,  lib.  7,  ep.  21,  23,  25. 

Innoc.  III.  1.  7,  ep.  212  (vol.  215,  p.  527),  Reg.  sup.  neg.  Imp.  ep. 
2  and  79.  Joh.  Saresb.  Polycr.  iv.  c.  i,  p.  208 — 209  and  vi.  c.  25, 
p.  391 — 395.  Thom.  Aquin.  in  libr.  11.  Sent.  dist.  44,  ad.  4  (utraque 
deducitur  a  potestate  divina).  Ptol.  Luc.  iii.  c.  i — 8.  Alv.  Pel.  i. 
a.  8,  41  c — K,  56  B.  Host.  Summa  iv.  17.  Panorm.  on  c.  13,  X.  2,  i. 

16.  Resuming  the  teaching  of  Augustine,  Gregory  VII.  is  the  Sinful 
first  to  declare  that  the  temporal  power  is  the  work  of  sin  and  the  the^tate. 
devil.    See  lib.  8,  ep.  21,  ann.  io8o,  p.  456 — 7:  'Quis  nesciat  reges 

et  duces  ab  iis  habuisse  principium,  qui  Deum  ignorantes,  superbia, 
rapinis,  perfidia,  homicidiis,  postremo  universis  sceleribus,  mundi 
principe  diabolo  videlicet  agilante,  super  pares,  scilicet  homines, 
dominari  caeca  cupiditate  et  intolerabili  praesumtione  atfectaverunt?' 
And  again:  'itane  dignitas  a  saecularibus — etiam  Deum  ignoranti- 
bus — inventa,  non  subicietur  ei  dignitati,  quam  omnipotentis  Dei 
providentia  ad  honorem  suum  invenit  mundoque  misericorditer 
tribuit?'  See  also  lib.  4,  ep.  2,  ann.  1076,  p.  243:  'illam  quidem 
(scilicet,  regiam  dignitatem)  superbia  humana  repperit,  hanc  (episco- 
palem)  divina  pietas  instituit;  ilia  vanam  gloriam  incessanter  captat, 
haec  ad  coelestem  vitam  semper  aspirat.'  Cardinal  Deusdedit 
(ob.  1099),  Contra  invasores  etc.  lib.  iii.  sect.  5  et  6  §  12  (in  Mai  vii. 
p.  107)  argues  in  like  fashion:  'Nec  mirum,  sacerdotalem  auctori- 
tatem,  quam  Deus  ipse  per  se  ipsum  constituit,  in  huiusmodi  causis 
regiam  praecellere  potestatem,  quam  sibi  humana  praefecit  adin- 
ventio  eo  quidem  permittente,  non  tamen  volente':  then  the  example 
of  the  Jews  is  cited.  John  of  Sahsbury,  Polycrat.  viii.  c.  17 — 18, 
20,  says  of  all  regna  'iniquitas  per  se  aut  praesumpsit  aut  extorsit  a 
Deo';  the  latter  was  the  case  of  the  Jews  according  to  i  Reg.  viii., 
since  'populus  a  Deo  quem  contempserat  sibi  regem  extorsit.' — 
Hugh  of  Fleury  (Prol.  i.  c.  i,  4,  12,  11.  p.  66 — 68),  who  himself 
deduces  an  immediately  divine  origin  for  the  royal  power  from 
'  Non  est  potestas  nisi  a  Deo,'  describes  as  a  wide-spread  error  the 
doctrine  which  would  give  to  that  power  a  human,  and  therefore 
sinful,  origin.  Innocent  III.,  Reg.  sup.  neg.  Imp.  ep.  18,  argues 
for  the  indestructibility  of  the  Priesthood  and  the  frailty  of  the 


no  Political  Theories  of  the  Middle  Age. 


Realm,  since  the  one  was  instituted  by  divine  ordinance  and  the 
other  (i  Reg.  viii.)  'extortum  ad  petitionem  humanam.'  Compare 
August.  Triumph,  ii.  q.  33,  a.  i.  Also  Alvar.  Pelag.  i.  a.  59  g 
(regnum  terrenum,  sicut  ipsa  terrena  creatura  sibi  constituit  tanquam 
ultimum  finem,  ...est  malum  et  diabolicum  et  opponitur  regno  coe- 
lesti)  and  64  d — e  (sordida  regni  temporahs  initia). — Gerson,  Op.  iv. 
648:  the  efficient  cause  of  do??imatio  and  of  coercitivuvi  do??n/iiu??i 
was  sin. — Petr.  Andl.  i.  c.  i:  'fuit  itaque  solum  natura  corrupta 
regimen  necessarium  regale';  but  for  the  Deluge,  instead  of  owner- 
ship and  lordship,  there  would  have  continued  to  be,  as  there  will 
be  in  another  world,  liberty,  equaHty  and  community  of  goods  under 
the  direct  government  of  God.  See  also  Frederick  II.  in  Petr.  de 
Vin.  ep.  V.  c.  i.  [In  an  earlier  part  of  his  book,  D.  G.  R.  iii.  125,  126, 
Dr  Gierke  has  stated  the  doctrine  of  the  sinful  origin  of  the  State 
that  is  found  in  Augustine's  De  civitate  Dei.] 
Ordination  17.  Already  Honorius  Augustodunus,  Summa  gloria,  c.  4,  in 
Church  ^^^^ — ^'  since  soul  is  worthier 

than  body,  and  priesthood  than  realm,  the  realm  hire  ordinaturhy  the 
priesthood  ;  as  the  soul  vivifies  the  body,  so  the  priesthood  constituens 
ordinat  the  realm  :  '  igitur  quia  sacerdotium  iure  regnum  constituet, 
iure  regnum  sacerdotio  subiacelnt' — So  again,  Hugo  a  S.  Victore, 
De  sacram.  Ub.  11.  pars  2,  c.  4 :  the  spiritual  power  is  worthier  than 
the  temporal,  'nam  spiritualis  potestas  terrenam  potestatem  et  insti- 
tuere  habet,  ut  sit,  et  iudicare  habet,  si  bona  non  fuerit ;  ipsa  vero 
a  Deo  primum  instituta  est,  et  cum  deviat,  a  solo  Deo  iudicari  potest, 
sicut  scriptum  est :  Spiritualis  diiudicat  omnia  et  ipse  a  nemine 
iudicatur':  the  spiritual  is  prior  in  time  as  well  as  in  worth:  thus  in 
the  Old  Dispensation  the  priesthood  was  first  instituted  by  God,  and 
afterwards  the  royal  power  was  ordained  by  the  priesthood  at  God's 
command  ;  so  now  in  the  Church  the  sacerdotal  dignity  consecrates 
the  royal  power,  both  sanctifying  it  by  blessing  and  forming  it  by 
institution. — So  in  the  same  words  Alexander  Halensis,  Summa 
Theolog.,  P.  IV.  q.  x.,  memb.  5,  art.  2.  Then  Aegid.  Rom.  De  pot. 
eccl.  I.  c.  4,  and  Boniface  VIII.  in  Unam  Sanctam  :  'nam  veritate 
testante  spiritualis  potestas  terrenam  potestatem  instituere  habet  et 
iudicare,  si  bona  non  fuerit.'  Compare  also  Joh.  Saresb.,  above 
Note  14,  and  Thomas  of  Canterbury,  who,  in  the  passage  cited  in 
Note  10,  proceeds  to  say  :  'et  quia  certum  est  reges  potestatem  suam 
accipere  ab  Ecclesia,  non  ipsam  ab  illis,  sed  a  Christo.'  Vincent. 
Bellovac.  lib.  vii.  c.  32. — A  thorough  statement  by  Alvar.  Pelag.  i. 
a-  36,  37  (regalis  potestas  est  per  sacerdotalem  ordinata),  56  b, 
59  F — G  (the  spiritual  is  efficient  and  final  cause  of  the  temporal 


Notes. 


Ill 


power,  and  only  in  this  way  has  the,  in  itself  sinful,  terrene  realm  a 
share  in  the  sanctity  of  the  celestial).  August.  Triumph,  i.  q.  i,  a.  i 
and  3,  q.  2,  a.  7,  11.  q.  33,  a.  i  and  2  (the  imperium  tyra?micum  is 
older  than  the  priesthood,  but  the  wip.  politicum^  rectum  et  iiistum  is 
established  by  the  Popes  for  the  defence  and  service  of  the  Church). 
— Hostiensis,  upon  c.  8,  X.  3,  34,  nr.  26,  27. — Panormitanus,  upon 
c.  13,  X.  2,  I. — Konrad  v.  Megenberg,  in  Hofler,  Aus  Avignon, 
p.  24  fT. — A  relationship  of  this  sort  between  the  two  powers  is 
already  implied  in  the  allegorical  use  of  Sun  and  Moon  (e.g.  in 
Gerhoh  v.  Reichersberg,  praef  c.  3),  which  becomes  official  from 
the  time  of  Innocent  III.  onwards:  c.  6,  X.  i,  33,  also  lib.  i,  ep. 
104,  vol.  214,  p.  377,  and  Reg.  s.  neg.  Imp.  ep.  2,  32  and  179- 
for  the  moon  borrows  her  light  from  the  sun  (ep.  104  cit.).  The 
yet  commoner  comparison  with  Soul  and  Body  effects  the  same  pur- 
pose, for  the  soul  was  regarded  as  the  formative  principle  of  the  body. 
See  Honorius  Augustod.  as  above,  and  Ptol.  Luc.  De  reg.  princ.  iii. 
c.  10  (sicut  ergo  corpus  per  animam  habet  esse,  virtutem  et  opera- 
tionem...ita  et  temp,  iurisdict.  principum  per  spiriiualem  Petri  et 
eius  successorum). 

18.  The  thought  that  in  the  last  resort  the  State  is  an  Ecclesi-  The  State 
astical  Institution  is  already  being  expressed  when,  on  the  one  hand,  sksdcal^' 
the  two  powers  have  assigned  to  them  respectively  the  ghostly  domain  Institu- 
and  the  corporeal,  and,  on  the  other  hand,  corporeal  purposes  are  ^^°^* 
declared  to  be  mere  means  for  ghostly  purposes.    See  Gregor.  VII., 

hb.  8,  ep.  21  ;  Innoc.  III.,  Respons.  in  consist,  in  Reg.  sup.  neg. 
Imp.  ep.  18,  p.  ioi2ff.;  c.  6,  X.  i,  33.  Thom.  Aquin.,  De  reg. 
princ.  I.  c.  14 — 5  :  the  priests  have  the  care  of  the  ultimate  end ; 
temporal  kings  have  merely  the  care  of  antecedent  ends :  '  ei  ad 
quem  finis  ultimi  cura  pertinet,  subdi  debent  illi  ad  quos  pertinet 
antecedentium  finium,  et  eius  imperio  dirigi.'  See  also  Thom.  Aq. 
in  libr.  11.  Sent.  dist.  44  in  fine,  and  Summa  Theol.  11.  2,  q.  60,  a.  6, 
ad.  3.  Vincent.  Bellov.  lib.  vii.  3  and  32.  Aegid.  Rom.,  De  pot.  eccl. 
II.  c.  5  :  '  potestas  regia  est  per  pot.  eccl.  et  a  pot.  eccl.  constituta 
et  ordinata  in  opus  et  obsequium  ecclesiasticae  potestatis.'  Aug. 
Triumph,  i.  q.  i,  a.  8  :  'temporalia  et  corporalia...ad  spiritualia 
ordinantur  tanquam  instrumenta  et  organa.'  Alv.  Pel.  i.  a.  37 
p  and  R,  a.  40  and  56.  Durandus  a  S.  Porciano,  De  origine  iuris- 
dictionis,  qu.  3  :  '  temporalia  quae  ordinantur  ad  spiritualia  tanquam 
ad  finem.'    Panorm.  c.  13,  X.  2,  i. 

19.  To  this  effect  already  Deusdedit,  Contra  invasores,  lib.  iii.  The  sphere 
sect.  5  et  6  §  13,  p.  108.    Petri  Exceptiones,  i.  c.  2,  in  Savigny,  p^^^^' 
Gesch.  des  r.  R.,  11.  322.    Dictum  Gratiani  upon  c.  6,  Dist.  10.  defined  by 


1 1 2  Political  Theories  of  the  Middle  Age. 


Spiritual    Petr.  Blesensis  jun.  Specul.  c.  i6.    Vincent.  Bellovac.  lib.  vii.  c.  33. 

Law.        ^yg^  Triumph,  i.  q.  i,  a.  3,  and  11.  q.  44,  a.  i — 8.    Alv.  Pelag. 
I.  a.  44.    Ockham,  Octo  qu.  iii.  c.  9. 

Subjection       20.    See  Gregor.  VII.,  lib.  i,  ep.  63  ;  lib.  4,  ep.  2,  ep.  23,  ep.  24; 

poral"^*     lib.  8,  ep.  21  (especially  p.  464).     Cardinal  Deusdedit,  Contra 

Power.  invasores,  lib.  11 1.  per  totum.  Honorius  Augustod.,  Summa  gloria, 
p.  1265  :  'iure  regnum  sacerdotio  subiacebit '  (above  Note  17).  Joh. 
Saresb.  v.  c.  2,  p.  252.  Thorn.  Cantuar.,  epist.  177 — 184,  p.  648  ff. 
Ivo  of  Chartres,  ep.  106,  Henrico  Anglorum  Regi,  p.  125  :  'regnum 
terrenum  coelesti  regno,  quod  Ecclesiae  commissum  est,  subditum 
esse  semper  cogitatis ;  sicut  enim  sensus  animalis  subditus  debet  esse 
rationi,  ita  potestas  terrena  subdita  esse  debet  ecclesiastico  regimini ; 
et  quantum  valet  corpus  nisi  regatur  ab  anima,  tantum  valet  terrena 
potestas  nisi  informetur  et  regatur  ecclesiastica  disciplina  ;  et  sicut 
pacatum  est  regnum  corporis  cum  iam  non  resistit  caro  spiritui,  sic 
in  pace  possidetur  regnum  mundi,  cum  iam  resistere  non  molitur 
regno  Dei':  You  (King  Henry)  are  not  dominus^  but  servus  servorum 
Dei;  be  their  protector,  non  possessor.  Comp.  ep.  60,  p.  70  ff. 
If  Ivo  here  and  elsewhere  (ep.  214,  p.  217  ff.,  and  ep.  238,  p.  245) 
expressly  states  that  the  ecclesia  can  only  flourish  if  Priesthood  and 
Realm  be  united,  while  every  discord  between  the  two  powers  must 
rend  the  church,  and  if  he  exhorts  the  Pope  (ep.  238)  to  do  his  part 
in  the  production  of  unity, — with  a  saving  for  the  majesty  of  the 
apostolic  see, — still  the  legal  relation  of  Realm  to  Priesthood  is,  in 
Ivo's  eyes,  a  complete  subjection. — To  the  same  effect  Alex. 
Halensis,  iii.  q.  40,  m.  2.  Rolandus  (Alex.  III.),  Summa,  p.  5,  D.  10. 
Innocent  III.,  in  c.  6,  X.  i,  33.  Thom.  Aquin.  De  reg.  princ.  i.  c.  14 
(Romano  pontifici  omnes  reges  populi  Christ,  oportet  esse  subditos, 
sicut  ipsi  domino  Jesu  Christo) ;  Opusc.  contra  impugn,  relig.  11. 
c.  4,  concl.  I  ;  Summa  Theol.  11.  i,  q.  60,  a.  6,  ad.  3  (potestas 
saecularis  subditur  spirituali,  sicut  corpus  animae) ;  in  lib.  11.  Sent.  d. 
44;  Quodl.  12,  q.  13,  a.  19,  ad.  2.  Aegid.  Rom.  De  pot.  eccl.  i. 
c.  7  (two  swords,  like  soul  and  body,  quorum  unus  alteri  debet  esse 
subiectus) ;  11.  c.  4,  10  and  12.  Boniface  VIII.,  in  Unam  Sanctam  : 
Oportet  autem  gladium  sub  gladio  esse  et  temporalem  auctoritatem 
spirituali  subiici  potestati.  August.  Triumph,  i.  q.  i,  a.  i  and  3, 
II.  q.  36,  38,  44,  a.  I  (Papa  est  medius  inter  Deum  et  populum 
Christianum  ;...medius  inter  Deum  et  imperatorem  ;...a  quo  impera- 
tori  respublica  commissa).  Alv.  Pel.  i.  a.  13,  37  Q — r,  56,  59. 
And.  Isern.  i.  Feud.  29,  pr.  nr.  2.  Barthol.  Soc.  iii.  cons.  99,  nr.  18. 
Cardin.  Alex.  c.  3,  D.  10.  The  Commentary  on  c.  6,  X.  i,  33. 
Comp.  also  Hofler,  Kaiserthum,  57  ff.,  80  ff.,  137  ff. — Comparisons 


Notes. 


with  gold  and  lead,  heaven  and  earth,  sun  and  moon,  soul  and  body, 
frequently  recur,  and  the  last  of  these,  if  taken  in  earnest,  must  make 
for  an  unconditional  subjection  of  the  State,  as  in  the  above-cited 
words  of  Ivo. 

2  1.  See  John  of  Salisbury  in  Note  14  and  Thomas  of  Canterbury  Temporal 
in  Note  10.  Summa  Parisiensis  (above  Note  12) :  imperator  vicarius  gg/vants^ 
eius.  Ptol.  Luc.  iii.  c.  17:  imperium  ad  exequendum  regimen  of  Church 
fidelium  secundum  mandatum  pontificis  ordinatur,  ut  merito  dici  Pop^- 
possint  ipsorum  executores  et  cooperatores  Dei  ad  gubernandum 
populum  Christianum.  Aegid.  Rom.  De  pot.  eccl.  c.  5.  Hostiensis 
upon  c.  8,  X.  3,  34,  nr.  26 — 7.  August.  Triumph,  i.  q.  i,  a.  8  (princes 
are  quasi  ministri  et  stipendiarii  ipsius  papae  et  ipsius  ecclesiae,  they 
receive  an  office  and  are  remunerated  de  thesauro  ipsius  ecclesiae) ; 
q.  44  and  45  ;  11.  q.  35,  a.  i,  and  38,  a.  2 — 4  (the  Emperor  is 
minister  papae);  i.  q.  22,  a.  3  (the  Emperor  is  hkened  to  a  pro- 
consul). Alv.  Pel.  I.  a.  40  :  as  the  Church,  which  is  Cosmopolis, 
can  give  (by  baptism)  and  take  away  the  right  of  citizenship,  so  she 
distributes  offices  among  her  citizens  ;  sacerdotal  consecration  and 
unction  first  give  temporal  lordship  over  God's  holy  people,  and 
these  priestly  acts  must  be  regarded  as  approval  and  confirmation  ; 
a.  56  B  and  p;  also  a.  13;  a.  40  k  (sicut  anima  utitur  corpore  ut 
instrumento,...sic  papa. ..utitur  officio  imperatoris  ut  instrumento)  ; 
a.  52 — 54  (all  worldly  and  ghostly  offices  are  '  gradus  in  ecclesia'). 
The  Clerk  in  Somn.  Virid.  11.  c.  163.  Comp.  in  Joh.  Par.  prooem. 
the  confutation  of  the  statement  that  praelati  et  principes  are  only 
tutores,  procuratores  and  dispensatores  of  the  Pope's  verum  dominium 
temporalium. 

22.  Apparently  Goffredus  abbas  Vindocinensis  (Migne,  vol.  157,  The  High 
p.  220)  is  the  first  allegorically  to  explain  the  two  swords  mentioned  ^^Q^f^^e 
in  Evang.  Lucae,  c.  22,  v.  38,  as  being  material  and  spiritual  swords,  of  the  Two 
which  are  to  be  used  in  defence  of  the  Church  ;  but  he  only  uses  this 
allegory  to  support  a  demand  for  an  amicable  union  between  the 
two  powers.  Gerhoh  Reichersp.  (Migne,  vol.  194,  p.  in)  goes  no 
further.  Bernard  of  Clairvaux  (ep.  256,  ann.  1146,  in  Migne,  vol. 
182,  p.  463)  seems  the  first  to  explain  the  allegory  in  the  manner 
that  was  afterwards  adopted  by  the  Church's  champions :  Petri 
uterque  est,  alter  suo  nutu,  alter  sua  manu  :  see  also  De  consider. 
IV.  c.  3,  in  Migne,  vol.  186,  p.  776.  Then  already  with  John  of 
Salisbury,  Polycrat.  iv.  c.  3,  the  Prince  receives  one  sword  from  the 
hand  of  the  Church;  the  Church  has  that  sword  (habet  et  ipsum), 
but  uses  it  '  per  principis  manum.'  So  S.  Anselm,  Comm.  in  ^latth. 
c.  26.  Among  the  Popes,  Innoc.  IIL,  Gregor.  IX.,  Innoc.  IV.,  and 
M.  8 


114  Political  Theories  of  the  Middle  Age. 


Bonif.  VIII.  (Unam  sanctam,  also  speech  in  the  Roman  synod,  in 
Hefele,  Koncihengesch.,  vi.  §  689)  raised  this  theory  to  the  rank  of 
an  official  doctrine.  It  was  conceded  by  some  of  the  Emperors,  such 
as  Otto  IV.,  Frederick  II.,  Albert  (1302  and  1303);  see  Hofler, 
pp.  86,  134.  Thenceforward  it  was  a  self-evident  axiom  for  the 
Canonists,  and  Prosdocimus  de  Comitibus,  nr.  55,  can  reckon  the 
two  theories  of  the  Two  Swords  as  'a  difference  between  the  leges 
and  the  canones.'  Comp.  Glossa  Ord.  on  c.  i,  Dist.  22.  v.  coelestis : 
argumentum  quod  papa  habet  utrumque  gladium,  scil.  spir.  et  temp. 
(The  text  that  is  being  glossed,  from  Petrus  Damianus,  Opusc.  iv.  admits 
of  various  interpretations  : — beato  aeternae  vitae  clavigero  terreni 
simul  et  coelestis  imperii  iura  commisit.)  Quotation  from  Alanus  in 
Lup.  Beb.  c.  9,  p.  368.  Gloss.  Ord.  on  c.  13,  X.  i,  2 :  verum  execu- 
tionem  gladii  temporalis  imperatoribus  et  regibus  commisit  ecclesia; 
quaedam  enim  possumus  aliis  committere  quae  nobis  non  possumus 
retinere.'  Commentaries  on  c.  34,  X.  i,  6,  c.  i,  X.  i,  7,  c.  13,  X.  2, 
I,  c.  10,  X.  2,  2  by  Innocentius,  Zabarella,  Ant.  Butrigarius,  Felinus 
and  Decius.  Thus  e.g.  Panormitanus  holds  that  the  imperium  is 
'non  immediate  a  Deo,  sed  per  debitam  et  subalternatam  emana- 
tionem  a  vicario  Christi  Jesu,  apud  quern  sunt  iura  coelestis  et  terreni 
imperii':  in  this  sense  are  to  be  understood  the  words  'non  est 
potestas  nisi  a  Deo';  but  we  may  also  apply  them  to  mean  that 
according  to  the  will  of  God  one  Sword  belongs  to  temporal  rulers 
'respectu  exercitii.'  See  further  Aegid.  Rom.  De  pot.  eccl.  i. 
c.  7 — 9.  Schwabensp.  c.  i.  Aug.  Triumph,  i.  q.  i,  a.  i,  and  11.  q.  36, 
a.  I — 4.  Alv.  Pelag.  i.  a.  13,  37  s  (dominus  legitimus...utilis)  and  z, 
40  K,  59  D  (the  Pope  is  always  primum  movens,  even  when  the 
Prince  is  proximum  movens),  11.  a.  57;  Konr.  Megenb.  in  Hofler, 
aus  Avignon,  p.  24  ff  Petrus  a  Monte,  in  Tr.  U.  J.  xiii.  i,  f.  152  ff. 
Petrus  de  Andlo,  11.  c.  9.  Turrecremata,  Summa  de  eccl.  11.  c.  114. 
Naturally  a  few  legists  take  the  same  view,  e.g.  Bartolus,  1.  t,  §  i, 
Dig.  48,  17,  and  Paul.  Cast.  1.  8,  Dig.  i,  3,  nr.  6 ;  and  some  feudists, 
e.g.  Andr.  de  Isern.  11.  Feud.  55,  nr.  87.  All  the  arguments  pro 
and  con  are  collected  by  Ockham,  who  distinguishes  with  exactitude 
various  nice  shades  of  the  doctrine  'Imperium  a  Papa':  see  Octo- 
qu.  I.  c.  2,  18 — 19  and  on  the  other  side  c.  6—17  ;  also  see  11. 
c.  I — 4,  12,  15,  and  on  the  other  side  c.  6 — 14;  viii.  c.  i ;  Dial.  iii. 
tr.  2,  1.  I,  c.  18 — 25. 

Emperors        23.    Comp.  e.g.  Innoc.  IV.  upon  c.  10,  X.  2,  2,  nr.  i  ;  Thom. 

pora?'^"^'  Quo^^l-       q.  13,  a.  19,  ad  2:  Reges  sunt  vassalli  ecclesiae. 

Rulers  as   Clement  V.  in  Clem.  un.  de  iureiurando,  2,  9,  and  the  commentaries 

VaLds     thereon.    Aug.  Triumph.  I.  q.  I,  a.  I ;  11.  q.  38,  a.  4;  Alv.  Pel.  i. 


Notes. 


"5 


a.  13  B,  a.  40,  a.  57  ;  Konr.  Megenb.,  in  Hofler,  aus  Avignon,  p.  24  fF.; 
Petr.  Andl.  11.  c.  2  ;  Panorm.  c.  13,  X.  2,  i. 

24.  According  to  S.  Bernard,  De  consider,  iv.  c.  3,  the  temporal  The 
sword  is  to  be  wielded  '  ad  nutum  sacerdotis  et  ad  iussum  im-  ^^^^^^^"^^^ 
peratoris.'    Gregory  IX.  (Raynald,  ann.  1233,  nr.  i)  repeats  this  at  the 
but  omits  the  last  half  of  the  phrase.    Aegid.  Rom.,  De  pot.  eccl.  i. 

c.  8 — 9,  says  that  the  Pope  has  both  swords,  '  sed  decet  Ecclesiam  Church, 
habere  materialem  gladium  non  ad  usum  sed  ad  nutum.'    See  also 
Notes  20  and  21. 

25.  Innocent  III.  is  the  first  sharply  to  distinguish  between  Direct  use 

(1)  the  normal  use  that  is  made  of  the  spiritual  sword  when  the  acts  Church 
of  temporal  rulers  are  subjected  to  ecclesiastical  jurisdiction,  and  of  the 

(2)  the  exceptional  cases  in  which  the  Pope  directly  uses  the  temporal  Sw^rd^.'^^'^ 
sword.    See  in  particular  c.  13,  X.  2,  i  (lib.  7,  ep.  42,  ann.  1204)  on 

the  one  side,  and  on  the  other  c.  13,  X.  4, 17.  So  also  Innocent  IV.: 
compare  the  letter  of  1245  in  Hefele,  v.  looi:  nec  curabimus  de 
cetero  gladio  uti  materiali,  sed  tantum  spirituali  contra  Fridericum. 
Encyclica  of  1246  :  spiritualiter  de  temporalibus  iudicare.  Innoc. 
Comm.  upon  c  13,  X.  2,  i. — Hostiensis,  Summa,  4,  17  :  sicut  contra 
et  super  et  praeter  naturalem  et  humanam  rationem  Filius  Dei  incar- 
natus  et  natus  est,  sic  iurisdictio  spiritualis,  quam  Ecclesiae  reliquit, 
contra  et  super  et  praeter  naturam  iurisdictionis  trahit  ad  se  princi- 
palem  iurisdictionem  temporalem,  si  id,  quod  de  iurisdictione  spirituali 
est,  in  ea  incidit.  Petrus  Paludanus,  De  causa  immediata  eccl.  pot. 
a.  4:  Papa  est  superior  in  spiritualibus  et  per  consequens  in  tempora- 
libus, quantum  necesse  est  pro  bono  spirituali. — Johan.  Andr.  c.  13, 
X.  4,  17  :  temporalia  per  quandam  consequentiam.  Turrecremata, 
II.  c.  1 13  ff. — On  the  other  hand,  in  the  argumentation  of  Gregory  VII. 
lib.  4,  ep.  2,  and  hb.  8,  ep.  21,  the  right  that  he  claims  of  deposing  the 
Kaiser  is  thoroughly  fused  with  a  right  to  excommunicate  the  Kaiser. 
Similarly,  those  later  writers,  who  will  hardly  allow  any  independence 
to  the  temporal  sword,  do  not  clearly  distinguish  between  the 
ordinary  use  of  spiritual  power  in  the  correction  of  Rulers  and  an 
extraordinary  use  of  temporal  power  by  the  Pope.  See  e.g.  Joh. 
Saresb.  Polycr.  iv.  c.  i — 4 ;  Aegid.  Rom.  De  pot.  eccl.  i.  c.  2 — 4, 
II.  c.  4  and  esp.  iii.  c.  4 — 8  ;  August.  Triumph,  i.  q.  i,  a.  i  (institui, 
regulari  et  ordinari  si  bona  sit,  condemnari  et  iudicari  si  bona  non 
sit);  Alv.  Pel.  i.  a.  37,  56,  58 ;  Cler.  in  Somn.  Virid.  11.  c.  18,  22,  24, 
26,  28,  32,  69,  139. 

26.  So  Innocent  III.  in  c.  13,  X.  4,  17  :  there  should  be  no  The 
invasion  into  ius  alienum ;  what  is  Caesar's  should  be  given  to  ^q^^^^ 
Caesar.    And  to  the  same  effect  what  is  said  of  the  separation  of  respect  the 


ii6  Political  Theories  of  the  Middle  Age. 


Rights  of  the  swords  and  their  duty  of  mutual  aid :  Reg.  sup.  neg.  Imp.  ep.  2, 
^"^^^s*  vol.  216,  p.  997,  and  ep.  179,  p.  1162,  also  lib.  7,  ep.  54  and  79, 
vol.  215,  p.  339  and  361,  lib.  10,  ej).  141,  p.  1235,  lib.  11,  ep.  28, 
p.  1358.  Innocent  IV.  Comment  on  13,  X.  4,  17:  nam  temporalia 
et  spiritualia  diversa  sunt,  et  diversos  iudices  habent,  nec  unus  iudex 
habet  se  intromittere  de  pertinentibus  ad  alium,  licet  se  ad  invicem 
iuvare  debeant. — Hostiensis,  Summa,  4,  17:  iurisdictiones  distinctae; 
...nec  debet  se  intromittere  de  subditis  Imperatoris,  nisi  forte  in 
casibus. — Gloss.  Ord.  upon  c.  13,  X.  4,  17;  and  upon  c.  13,  X.  2,  i: 
non  ergo  de  temporali  iurisdictione  debet  intromittere  se  Papa  nisi 
in  subsidium.  Ant.  Butr.  on  c.  13,  X.  4,  17;  Joh.  Andr.  on  c.  13, 
X.  2,  i;  Panorm.  on  c.  13,  X.  2,  i ;  Turrecremata,  11.  c.  113. 
Extra-  27.    S.  Bernard,  De  consider,  i.  c.  6:  ubi  necessitas  exigit... 

Use  of  incidenter... causa  quidem  urgente. — Innocent  III.  in  c.  13,  X.  4,  17: 
Temporal  power  may  be  used  casualiter  if  causae  multum  ardime  require  it. 
by  the  (^s  to  casualiter  and  the  variant  carnaliter,  see  Molitor,  p.  61  ff.) — 
Church.     Gloss.  Ord.  1.  c. :   in  subsidium.    Host,  upon  c.   13,  X.  2,  i; 

Thom.  Aquin.  Sum.  Theol.  11.  2,  q.  60,  a.  6,  ad.  3;  Joh.  Andr.  c.  13, 
X.  2,  i;  Ant.  Butr.  c.  13,  X.  4,  17:  non  regulariter;  Panorm.  1.  c.  : 
in  a  case  of  necessity,  if  there  are  ardua  negoiia. 
Transla-         28.    Gregory  VII.  lib.  8,  ep.  21,  ann.  1080,  p.  464:  quapropter 
En?pirV^^  quos  sancta  Ecclesia  sua  sponte  ad  regimen  vel  imperium  deliberato 
by  the      consilio  advocat,  (iis)  non  pro  transitoria  gloria  sed  pro  multorum 
Pope.       salute,  humiliter  obediant. — S.  Bernard,  ep.  236;  Landulf  Col.  De 
transl.  Imp.,  c.  8;  Ptol.  Luc.  iii.  c.  10;  Aug.  Triumph.  11.  q.  37,  a.  5: 
regnorum  omnium  translatio  auctoritate  papae  facta  fuit  vel  alicuius 
qui  ipsum  figurabat:  e.g.  Samuel,  Daniel  and  so  forth.    Also  q.  46, 
a.  3:  est  Dei  vice  omnium  regnorum  provisor. — Konrad  v.  Megenburg, 
in  Holler,  aus  Avignon,  p.  24  f  :  the  transfer  should  be  made  in 
accordance  with  divine  law,  not  arbitrarily. — Panorm.  c.  13,  X.  2,  i: 
hinc  est  quod  imperium  transferre  potest  de  certo  genere  personarum 
ad  aliud  genus. — Turrecremata,  n.  c.  115;  Ockham,  Octo  qu.  iv.  c.  4, 
and  VIII.  c.  3;  Dial.  iii.  tr.  2,  1.  i,  c.  20. 
Translatio       29.    Innocent  III.  in  c.  34,  X.  i,  6,  and  all  the  Commentaries 
Imperil.     ^^^^  ^^^-^  ^^^^^     y\o\.  Luc.  III.  c.  18;  Land.  Col.  c.  3—8;  Aug. 

Triumph.  11.  q.  37,  a.  i — 4.    Alv.  Pel.  i.  a.  13  f  and  41;  Andr. 
Isern.  prooem.  Feud.  nr.  37;  Petr.  iVndl.  i.  c.  13 — 15,  11.  c.  3;  cf. 
Ockham,  Octo  qu.  iv.  c.  5. 
Papal  See  above  Notes  17  and  21,  and  below  Note  34.  Already 

Appoint-  Gregory  VII.  claims  this  right,  as  appears  from  c.  3,  C.  15,  q.  6,  a 
Kaisers  passage  from  a  letter  of  his  (ann.  1080)  to  Bishop  Hermann  of 
and  Kings.  Metz :   Alius  item   Romanus   Pontifex,  Zacharias  scilicet,  regem 


Notes. 


117 


Francorum  non  tarn  pro  suis  iniquitatibus,  quam  pro  eo,  quod  tantae 
potestati  erat  inutilis,  a  regno  deposuit,  et  Pipinum,  Karoli  impera- 
toris  patrem,  in  eius  loco  substituit,  omnesque  Francigenas  a 
iuramento  fidelitatis,  quod  illi  fecerant,  absolvit.  In  the  two  letters 
of  1077,  lib.  4,  ep.  23  and  24,  p.  275  ff.,  he  claims  to  decide  a 
disputed  succession  to  the  throne,  and  charges  all  men  to  obey  him 
whom  he  confirms  in  regia  dignitate. 

31.  As  to  the  supposed  institution  of  the  Prince-Electors  by  Tl^e^Pope 
Gregory  V.  and  his  right  to  institute  them,  see  Land.  Col.  c.  9;  German 
Ptol.  Luc.  III.  c.  10  and  19;  Aug.  Triumph.  11.  q.  35  ;  Alv.  Pelag.  i.  Electors, 
a.  13  F,  21,  27  z  and  Dd,  40  e — f,  45  ;  Zabarell.  c.  34  §  verum,  X. 

I,  6,  nr.  8.  Ptolemy  of  Lucca,  Augustinus  Triumphus,  and  Alvarius 
argue  that  the  Church  may  at  any  time  for  good  and  reasonable 
cause  change  the  mode  of  election,  give  the  right  of  election  to 
another  nation,  or  itself  exercise  the  right,  institute  an  hereditary 
empire  etc.  Augustinus  and  Alvarius  say  straight  out  that  the  Pope 
elects  the  Emperor  by  the  agency  of  the  Prince-Electors  (per  eos), 
for  a  principal  may  choose  instruments  and  ministers  as  he 
pleases. 

32.  Honorius  Augustod.  p.  1264;  Imperator  Romanus  debet  ab  The  Pope's 
Apostolico  eligi  consensu  principum  et  acclamatione  plebis,  in  caput  Ejection  ^ 
populi  constitui,  a  Papa  consecrari  et  coronari.   Innoc.  IH.  in  c.  34,  of  an 

X.  I,  6.    Innoc.  IV.  Compost.,  Joh.  And.,  Zabar.,  Panorm.,  Ant.  ^"^P^"^*^^* 
Butr.,  Felin.,  Decius  on  this  canon.    Aug.  Triumph.  11.  q.  38 — 41. 
Alv.  Pel.  I.  a.  13,  40,  43,  57  ;  Petr.  de  Andlo,  11.  c.  2,  4 — 7;  Marcus, 
I.  q.  938;  Turrecrem.  11.  c.  115. 

33.  Innoc.  IV.  upon  c.  10,  X.  2,  2,  nr.  i — 2,  and  c.  7,  X.  i.  The 

10,  nr.  3:  the  Pope  appoints  a  curator  for  a  king  incompetent  to  rule.  Guardian- 
Durant.  Spec.  i.  i  de  legato  §  6,  nr.  15  and  17.    Andr.  Isern.  11.  ship  of  the 
Feud.  55,  nr.  87.    Alv.  Pel.  i.  a.  13  f,  37  s,  56  n.    Petr.  Andl.  11. 
c.  10  (but  it  is  otherwise  under  the  Golden  Bull).    Hier.  Zanetinus, 
difif.  nr.  loi.    Turrecrem.  11.  c.  115.    This  principle  was  practically 
appHed  by  Clement  V.    See  also  Ficker,  Forschungen,  11.  458  ff. 

34.  Gregory  VII.  endeavoured,  not  only  practically  to  use  these  The 
powers,  but  also  theoretically  to  deduce  them  from  the  superiority  of  po^e^to 
the  spiritual  power,  since  the  bearer  of  the  keys  can  be  judged  by  depose 
none  and  himself  must  judge  the  temporal  rulers  :  Nescitis  quia  ^^^^ree 
angelos  iudicabimus  ?  quanto  magis  saecularia  !    He  appealed  to  the  Subjects 
deeds  of  his  predecessors,  more  particularly  Gregory  I.  and  Zacharias.  OaA  of^ 
See  lib.  i,  ep.  55%  p.  175,  lib.  4,  ep.  2  and  24,  lib.  8,  ep.  21  ;  c.  3,  Fealty. 
C.  15,  q.  6  (above  Note  30),  c.  4  eod.    He  is  followed  in  this  by 
Gregory  IX.,  Innocent  IV.,  John  XXII.,  Nicholas  V.  Comp. 


ii8  Political  Theories  of  the  Middle  Age. 


Dictum  Gratiani  P.  ii.  C.  15,  q.  6.  Joh.  Saresb.  Polycrat.  iv.  c.  3, 
p.  213:  dignitatem  principis  conferre  et  auferre,  and  v.  c.  6.  Landulf. 
Col.  c.  4.  Thorn.  Aq.  Summa  Theol.  11.  2,  q.  10,  a.  10,  and  q.  12,  a.  2. 
Innoc.  IV.  on  c.  27,  X.  2,  27,  nr.  6.    Aegid.  Rom.  De  pot.  eccl. 

I.  c.  2 — 5.  Host.  c.  8,  X.  3,  34,  nr.  26 — 27.  Dur.  Spec.  1.  c.  nr.  17. 
Aug.  Triumph,  i.  q.  i,  a.  i  and  3  ;  q.  6  ;  q.  26,  a.  4 ;  q.  46,  a.  i  ; 

II.  q.  40,  a.  I — 4;  q.  45,  a.  3;  q.  46,  a.  i — 2.  Alv.  Pel.  i.  a.  13  b,  21, 
37  R,  40  F  (eccl.  Rom.  cuius  est  regna  transferre  et  reges  de  sua  sede 
deponere) ;  56  e  (duty  of  protecting  nations  against  the  tyranny  of 
kings);  11.  a.  29  and  30.  Zabar.  c.  34  §  verum,  X.  i,  6,  nr.  7. 
Panorm.  eod.  c.  nr.  7 — 9,  and  c.  13,  X.  4,  17  (deponit  causis 
exigentibus).  Phil.  Dec.  c.  i,  X.  2,  19,  nr.  8.  Some  legists  took  this 
side  :  Bartol.,  1.  11,  C.  i,  14,  nr.  4  ;  Baldus,  ead.  1.  nr.  6. 

The  Pope's       35-    See  e.g.  Aug.  Triumph.  11.  q.  45  and  46  ;  the  Clerk  in  Somn. 
RuTeTs*^^^^ ^'  7^^-'  9^       163.— It  is  true  that  some  special  claims 
other  than  could  be  made  against  the  Kaiser  (see  e.g.  Alv.  Pelag.  i.  a.  42  g  and 
pero^^^^     a.  44  e),  because  he  was  an  elected  prince,  and  because  there  was 
'  specialis  coniunctio  inter  imperatorem  et  papam ' ;  and  the  im- 
perialist partizans  point  out  that  their  adversaries  would  set  the 
Emperor  below  other  Monarchs  (see  e.g.  Ockham,  Dial.  iii.  tr.  2,1.  i, 
c.  20).    Still  in  the  main  Frederick  II.  was  quite  right  when  in  his 
famous  letter  he  laid  stress  on  the  solidarity  of  the  interests  of  all 
temporal  rulers  who  were  equally  threatened  by  the  Pope.  See 
Petr.  de  Vin.  ep.  i.  c.  2,  3,  34. 
Remin-  36.    For  Abp.  Reinald  of  Koln  in  1162  (Watterich,  Pont.  Rom. 

iscences  vitae  II.  530  and  533)  there  was  still  life  in  the  thought  that  the 
Subjection  Church  of  Rome  is  the  Empire's  church,  and  the  Pope  is  a  bishop  of 

of  Church  the  Empire.  Then  in  cent.  xiv.  it  begins  to  be  common  for  the 
to  Reahn.  ...  ,  , 

opponents  of  ecclesiastical  claims  to  appeal  to  history  and  to  speak 

of  the  position  held  by  the  church  under  the  old  Roman  Emperors, 

the  Prankish  Emperors,  the  Ottos  and  Henry  III. 

37.    Ockham,  Octo  q.  iii.  c.  3  and  8,  Dial.  iii.  tr.  2, 1.  i,  c.  i,  and 

1.  3,  c.  17  and  22.    Comp.  also  Anton.  Rosell.  i.  c.  61 — 63. 

Church  38.    This  had  previously  been  the  teaching  of  the  Church  herself. 

are^co-^^^   Henry  IV.  (ann.  1076  in  M.  G.  L.  11.  p.  48)  is  the  first  to  oppose  it 

ordinate,    to  the  growing  ecclesiastical  claims.    Pet.  Crassus,  p.  28  if.,  fully 

develops  it:  God  instituted  two  laws,  two  peoples,  two  powers  among 

Mankind.    So  Wenrich,  p.  214  ff. ;  Wido,  De  scismate,  lib.  11.; 

Walram  Naumb.,  De  unitate  eccl.,  lib.  i. ;  Sigebert  episc.  adv. 

Paschalem,  ann.  1103;  Tractatus  de  investitura,  ann.  1109.  Appeals 

to  it  are  made  by  Frederick  I.  (e.g.  ann.  115  2  in  Jaffe'  Mon.  Corb. 

p.  500  and  ann.  1157,  M.  G.  Leg.  11.  p.  105  ;  comp.  ep.  Wibaldi, 


Notes. 


119 


ann.  1152,  in  Jaffe.  1.  c.  p.  502),  Frederick  II.  (e.g.  Pet.  de  Vin.  ep. 
I.  c.  I,  9,  31,  V.  c.  i)  and  later  Emperors.  It  is  adopted  by  most  of 
the  Legists ;  they  follow  in  this  the  glosses,  especially  that  on  Auth. 
coll.  I.  6,  prooem.  v.  couferens  ge?ieri.  Many  of  the  older  Canonists 
held  the  same  opinion,  connecting  it  with  the  words  of  Gelasius  and 
Nicholas  1.  which  appeared  in  the  Decretum  as  c.  8,  I).  10,  c.  6, 
D.  96,  c.  10,  D.  ead.  Among  them  are  Stephanus  (above  Note  8) 
and  Huguccio  (as  to  whom  see  Lup.  Beb.  c.  9,  and  against  him  Aug. 
Triumph.  11.  q.  36,  a.  4).  So  also  some  of  the  older  Theologians, 
such  as  Peter  Damiani  (Opusc.  iv.  in  Migne,  vol.  145,  p.  71 — 72  and 
86 — 87,  lib.  4,  ep.  9  ad  Firm.  ep.  and  Hb.  7,  ep.  3  ad  Henr.  Reg. 
p.  121)  and  Gerhoh  of  Reichersberg  (Syntagma,  180 — 3).  Then  it 
is  defended  by  Hugo  Floriac.  (i.  c.  12,  p.  43  ff.,  and  11.  p.  46  ff.,  and 
65);  Otto  Frising. ;  Eberh.  Bamberg,  (ob.  1172,  see  Hofler,  Kaiser- 
thum,  p.  61);  Eike  v.  Repgow  in  the  Sachsenspiegel,  i.  a.  i;  Johann 
V.  Buch,  Gloss,  on  Sachsensp.  i.  a.  i,  and  iii.  a.  57,  §  i  ;  Vridank, 
p.  152,  V.  12 — 19,  and  other  German  poets. — Then  Dante  (Mon.  iii. 
c.  16)  endeavoured  to  give  it  a  deeper  philosophical  foundation.  To 
biblical,  historical  and  legal,  he  added  physical  and  metaphysical 
arguments,  for  he  endeavoured  to  show  that  to  the  double  nature  and 
double  end  of  man  there  must  correspond  a  duplex  diredivum 
ordained  by  God.  Comp.  also  Joh.  Paris,  c.  4 — 10:  potestates 
distinctae  et  una  in  aliam  non  reducitur.  Lup.  Bebenb.  c.  10:  pot. 
distinctae  et  divisae.  Quaestio  in  utramque  part.  p.  96 — 102. 
Ockham,  Octo  qu.  i.  c.  i,  3 — 5  and  20  (where  a  distinction  is  drawn 
between  two  opinions,  viz.  that  the  two  powers  cannot  be  united,  and 
that,  though  they  could  be  united,  an  ordinance  of  God  forbids  their 
union);  Dial.  iii.  tr.  2,  1.  2,  c.  i — 4.  Disput.  int.  mil.  et  cler. 
pp.  667 — 682.  Miles  in  Somn.  Virid.  i.  c.  i — 16  and  39  tt.,  11.  c.  116: 
Deus  duas  iurisdictiones  distinxit,  duos  populos,  duas  vitas,  duo  genera 
militum.  Petr.  de  Aliac.  in  Gerson,  Op.  i.  678.  Gerson,  iv.  650. 
Randuf,  De  mod.  un.  c.  15.  Theod.  a  Niem,  De  schism,  iii.  c.  7  ; 
Priv.  et  iura  imp.  p.  785.  Nic.  Cus.  iii.  c.  i — 2,  5,  31,  41.  Aen. 
Sylv.  c.  7.  Greg.  Heimb.  Admon.  i.  p.  557 — 563.  Ant.  Ros.  i. 
c.  20 — 38  and  41  :  Deus  duos  constituit  vicarios.  Almain,  Expos, 
on  Qu.  I.  c.  6 — 7,  declares  the  second  of  the  two  opinions  discussed 
by  Ockham  to  be  the  true  one. 

39.  Pet.  Crassus,  p.  28  ff.  Sachsensp.  i.  a.  3,  §  3.  Joh.  Paris.  ^^^^P^^^^^ 
c.  18,  p.  195.  Ockham,  Octo  qu.  i.  c.  15  and  iii.  c.  2.  Somn.  dependent 
Virid.  I.  c.  70  ff.  and  103  ff.    Franc.  Curt.  sen.  Cons.  43,  nr.  4.         011  the 

40.  See  esp.  Pet.  Crassus,  p.  26 :  divinitus  datum.  Wenrich  in 
Martene,  i.  p.  220.    Emp.  Frederick  I.  ann.  1157  and  1159,  in 


1 20  Political  Theories  of  the  Middle  Age. 


Imperium  M.  G.  L.  pp.  105,  ii8:  a  solo  Deo  imperium.  Cinus  upon  1.  i, 
pendet'ab  ^-  ^'  ^'  '^^^  ^ — 3'  Aiith.  cassa  on  1.  12,  C.  i,  3,  nr.  2  :  Imp.  et 
ecclesia.     Papa  aeque  principaliter  sunt  constituti  a  Deo.    Damasus,  Broc.  m. 

III.  br.  19.  Dante,  Mon.  lib.  iii.  throughout.  Quaestio  in  utr.  part, 
a.  I,  2,  3,  5.  Joh.  Paris,  c.  5  :  et  ambae  oriuntur  ab  una  suprema 
potestate,  scil.  divina,  immediate;  c.  10.  15 — 22.  Marsil.  Pat.  Def. 
pac.  II.  c.  27.  Declarations  at  Lahnstein  and  Rense,  in  Ficker,  zur 
Gesch.  des  Kurv.  v.  R.  p.  699  ff.  Miles  in  Somn.  Vir.  i.  c.  57 — 69, 
74 — 78,  88 — 102,  146 — 163.  Disput.  int.  mil.  et  cler.  p.  677. 
Baldus,  I.  I,  C.  I,  I,  nr.  i — 12  ;  sup.  pace  Const,  v.  'hoc  quod  non/ 
nr.  8 — 13.  Joh.  ab  Imola,  1.  i.  Dig.  de  V.  O.  nr.  22 — 27.  Joh. 
And.  Nov.  s.  c.  13,  X.  4,  17.  Theod.  a  Niem.,  De  schism,  iii.  c.  7  ; 
Priv.  aut  iur.  imp.  p.  785.  Nic.  Cus.,  Cone.  cath.  iii.  c.  3  and  5. 
Ant.  Ros.  I.  c.  II,  20 — 38,  47 — 49  and  56.  Declarations  of 
Frederick  I.  (Hofler,  p.  64  ff.)  and  Frederick  II.  (in  Pet.  de  Vin.  ep. 
I.  c.  I,  p.  93  \  c.  9,  p.  122  ;  c.  II,  p.  126  ;  c.  25  ;  iii.  c.  4,  p.  68 ;  v.  c. 
i).  Passages  from  the  poets  in  Hofler,  p.  105 — 7.  For  intermediate 
opinions,  which  he  rejects,  see  Joh.  Paris,  c.  11  ;  also  Lup.  Bebenb. 
c.  9.  Ockham  elaborately  discusses  the  many  possible  shades  of  the 
doctrine  Imperium  a  Deo\  Octo  qu.  11.  c.  i,  3,  5;  iv.  c.  8 — 9; 
VIII.  c.  5  ;  Dial.  iii.  tr.  2,  1.  i,  c.  25 — 28. 
Imperial-  41.  A  feudal  relationship  between  Emperor  and  Pope  is  unani- 
Papal  mously  denied  :  the  Kaiser  only  swears  to  defend ;  Lup.  Bebenb. 
Claims.     c.  9,  p.  368 — 70,  and  c  13,  p.  391 — 4;  Ockham,  Octo  qu.  11.  c.  11  ; 

VIII.  c.  I  and  5  ;  Dial.  iii.  tr.  2,  1.  i,  c.  21 ;  the  definition  of  rights  in 
Ficker,  Kurverein,  p.  710;  hni.  Ros.  i.  c.  9,  47,  71.  On  the  other 
hand,  but  few  men  flatly  deny  the  power  of  the  Pope  to  act  as 
supreme  judge  over  the  Emperor  or  allow  only  purely  spiritual 
censures  ratione  peccati:  among  the  few  are  Frederick  II.  (Petri  de 
Vin.  ep.  I.  c.  3)  and  Marsilius.  Others  admit  that  there  is  such  a 
power  to  be  used  in  extraordinary  cases,  or  explain  the  acts  of 
jurisdiction  which  the  Popes  have  really  performed  as  the  outcome  of 
voluntary  submission.  Of  this  more  below.  There  is  much  hesita- 
tion over  the  Translatio  Imperii  [from  Greeks  to  Germans]  and  its 
legal  justification  :  also  over  the  part  played  by  the  Pope  in  the 
Election  of  an  Emperor.  MarsiHus  (11.  26)  denies  to  the  Pope  any 
right  of  examining  the  election.  Usually  some  right  of  deciding,  for 
certain  ecclesiastical  purposes,  who  is  de  facto  Emperor  is  allowed  to 
the  Pope.  See  e.g.  Lup.  Bebenb.  c.  10,  p.  370 — 4;  Ockham,  Octo 
qu.  II.  c.  10  ;  Dial.  iii.  tr.  2,  1.  i,  c.  21  ;  Ant.  Ros.  i.  c.  48.  Lupoid 
v.  Bebenburg  (c.  12)  goes  further,  and  concedes  a  power  to  solve 
doubts  in  cases  of  double  election,  since  the  law  of  God  gives  the 


Notes, 


121 


Pope  power  to  decide  dubia  turis,  and  the  law  of  necessity  gives  him 
power  to  decide  dubia  facti.  He  even  maintains  (c.  ii,  13  and  16) 
that  the  coronation  is  no  bare  ceremony,  for,  though  the  Election 
gives  the  Elect  imperial  power  over  the  lands  held  by  Charles  the 
Great  before  the  Translatio  Imperii,  it  is  the  coronation  which  makes 
him  Emperor  of  the  rest  of  the  world.  This  opinion  (see  against 
it  Ockham,  Oct.  q.  iv.  c.  i — 3  and  7)  failed  to  obtain  supporters. 
At  any  rate  after  the  Kurverein  [meeting  and  declaration  of  the 
Electors]  at  Rense,  the  imperialist  party  held  that  the  unction  and 
coronation  were  mere  solemnities,  which  played  no  greater  part  in 
the  case  of  the  elected  emperor  than  that  which  they  played  in  the 
case  of  an  hereditary  king ;  they  in  no  way  attested  a  papal  overlord- 
ship.  Comp.  Joh.  Paris,  c.  19;  Articuli  of  1338  in  Bohmer,  Pontes 
IV.  p.  594,  a.  2  ;  Documents  in  Picker,  Kurverein  von  Rense, 
pp.  699  ff.  esp.  p.  710,  a.  4;  Marsil.  Pat.  11.  c.  26  and  De  transl. 
imp.  c.  12;  Ockham,  Octo  qu.  11.  c.  10;  v.  c.  i — 10;  vi.  c.  i — 2; 
VII.  c.  I — 2  ;  VIII.  c.  I  ff.  ;  and  Dial.  iii.  tr.  2,  1.  i,  c.  21  ;  Somn. 
Virid.  I.  c.  166 — 9;  Joh.  de  Anan.  c.  6,  X.  i,  6,  nr.  7.  (At  a  later 
time  the  Church  Party  had  recourse  to  the  supposition  of  a  privi- 
legiu7n  bestowing  on  the  Emperor  Elect  the  ius  adniinistrandi  ante 
corojiationem.)  Ecclesiastical  claims  to  a  guardianship  of  the  Empire 
were  disputed  by  Marsilius  and  Ockham ;  but  the  latter  admitted 
that  they  might  perhaps  be  founded  upon  an  atictoritas  proceeding 
from  the  Empire  itself:  Octo  qu.  11.  c.  14;  and  Dial.  iii.  tr.  2,  1.  i, 
c.  22. 

42.  The  principle  that  Christ's  kingdom  is  not  of  this  world  was  The 
interpreted  in  numberless  ways  by  the  anti-clerical  opposition.  The  apurdy' 
commonest  exposition  comes  to  this,  that  ex  hire  divino  the  Church  Spiritual 
has  no  worldly  iurisdidio,  and  as  regards  property  can  only  demand 
so  much  as  is  necessary  for  her  support  and  divine  service  ;  but  that 
she  is  capable  of  acquiring  by  title  of  Positive  Law  (ex  concessione 
et  permissione  principum)  a  wider  field  of  lordship  and  ownership, 
and  also  may  in  case  of  necessity  exercise  worldly  rights.  Comp. 
Joh.  de  Paris,  prooem.  and  c.  13—14.  Ockham,  Octo  q.  i.  c.  6, 
ad.  2,  7—9,  10,  II.  c.  6,  III.  c.  1—2,  VIII.  c.  5  ;  Dial.  i.  6,  c.  3,  iii. 
tr.  I,  1.  I,  c.  9,  13,  15,  1.  2,  c.  2  and  29,  tr.  2,  1.  r,  c.  19  and  24. 
Michael  Cesena,  ep.  d.  a.  1333  (Goldast,  11.  1238  ff.).  Quaest.  in 
utramque,  a.  3.  Disput.  p.  677  ff.  Somn.  Virid.  i.  c.  i— 16,  11.  c.  i  ff. 
and  303  ;  Petr.  de  Aliac,  i.  667  and  674  ff. ;  Greg.  Heimb.  a.  1433 
(Gold.  I.  560  ff.  and  11.  1604  ff.) ;  Ant.  Ros.  c.  20—38  and  50. 
I'hese  principles  in  themselves  remained  unaffected  by  the  ever 
renewed  complaints  of  the  growing  worldliness  of  the  Church  (e.g. 


122  Political  Theories  of  the  Middle  Age. 


Imperial- 
ists con- 
cede Su- 
perior 
Dignity 
of  the 
Church. 


The 

Celestial 
Head  gives 
sufficient 
Unity  to 
the  two 
Powers. 


Church 
and  State 
in  co- 
operation. 


Dante,  ii.  c.  12—13),  and  by  the  dispute  among  the  Franciscans 
touching  EvangeHcal  Poverty.  Still  hardly  ever  were  there  wanting 
extremer  opinions  which  flatly  denied  the  Church's  competence  to 
wield  worldly  power  or  to  hold  any — or  any  unnecessary — property. 
This  is  the  case  of  Marsilius,  who  therefore  (but  in  this  he  stands  nearly 
alone)  denies  to  the  Church  any  '  coactive  jurisdiction,'  and  therefore 
any  coercion  of  consciences,  even  in  purely  spiritual  matters.  See 
also  Wyclif,  Supplem.  Trialogi,  p.  407  ff.,  and  art.  17  ;  Hus,  Determ. 
de  abl.  temporal,  a  clericis. 

43.  Comp.  Sachsensp.  i.  a.  i.  Dante,  iii.  c.  16  in  fine:  despite 
the  separation,  the  Kaiser  should  do  reverence  to  the  Pope  as  a 
first-born  son  to  a  father  :  mortalis  ilia  felicitas  quodammodo  ad 
imrnortalem  felicitatem  ordinatur.  Joh.  de  Paris,  c.  15  and  18. 
Ockham,  Octo  qu.  i.  c.  3  and  14.  Somn.  Virid.  i.  c.  83 — 84.  Baldus, 
1.  II,  C.  I,  14,  nr.  4,  and  prooem.  Dig.  nr.  17 — 19:  the  Pope  superior 
to  the  Emperor,  7ion  simpliciter^  but  qinbusda??i.  Similarly  Joh.  de 
An.  c.  6,  X.  I,  33,  nr.  6.  Comp.  Heinrich  v.  Langenstein,  in  Hartwig, 
I.  p.  52,  n.  I.  Ant.  Ros.  i.  c.  63.  In  this  sense  it  was  possible  to 
accept  the  comparison  with  Soul  and  Body  :  better  still,  that  with 
Sun  and  Moon,  l»oth  of  w^hich  were  created  by  God,  each  having  its 
own  powers  and  duties,  though  the  orb  of  day  was  the  higher. 

44.  Thus  already  Hugo  Floriac.  i.  c.  2,  and  11.  pp.  46,  65. 
Dante,  iii.  c.  12  :  true  it  is  that  Emperor  and  Pope  must  ad  unum 
i'ediici\  but  while,  if  we  consider  them  as  ho?ni?ies,  the  measure  will 
be  that  of  the  '  optimus  homo,  qui  est  mensura  omnium  et  idea,'  if 
we  consider  them  as  office-holders,  ipse  Deus  is  the  commimis  unitas 
which  is  super-posed  above  their  relationes  and  differentialia.  Joh. 
Paris,  c.  18 — 19:  una  est  ecclesia,  unus  populus,  unum  corpus 
mysticum :  but  the  unity  rests  in  Christ,  and  under  Him  the 
Priesthood  and  Realm  are  two  distinct  offices :  as  distinct  as  the 
offices  of  teacher  and  physician  when  held  by  one  man.  Quaest.  in 
utramque  p.  103,  ad.  4 — 5.  Ockham,  Octo  qu.  i.  c.  i  and  18;  Dial. 
III.  tr.  I,  1.  2,  c.  I  and  30.  Miles  in  Somn.  Virid.  i.  c.  38,  46,  48, 
102,  II.  c.  102,  305 — 312.    Anton.  Ros.  i.  c.  42. 

45.  It  need  hardly  be  said  that  even  the  Popes  and  their 
supporters  often  teach  that  amicable  relations  between  Priesthood 
and  Realm  are  a  necessary  condition  for  the  weal  of  Christendom. 
Thus  Gregory  VII.  with  great  emphasis:  lib.  i,  ep.  19,  ann.  1073, 
p.  302.  Ivo  of  Chartres  (above,  Note  20).  S.  Bernard,  ep.  244, 
p.  440  ff.  ;  De  consid.  11.  c.  8.  Innocent  III.  (above,  Note  26). 
Innocent  IV.  (above,  Note  26).  But  what  is  peculiar  to  the 
opponents  of  Church-Sovereignty  is  the  doctrine  that  in  this  world 


Notes. 


123 


the  Unity  of  the  two  powers  goes  no  further  than  the  estabHshment 
of  these  good  relations.  Tlius  already  Hugo  Floriac.  prol.  1.  c.  3,  12, 
II.  p.  46,  50  :  God  instituted,  hallowed  and  connected  the  two 
powers,  by  which  in  this  present  life  the  Holy  Church  is  ruled  and 
governed,  and  He  desired  their  inward  harmony :  they  are  the  two 
eyes  of  the  corpus  ecclesiae,  the  two  lights  /;/  tota  inundi  fabrica,  two 
pillars,  two  wangs.  See  also  Const.  Frider.  11.  ann.  1220,  §  7  in  M.  G.  L. 
II.  p.  236.  Sachsensp.  i,  a.  i,  with  the  gloss  to  this  art.  and  to  iii. 
art.  57.  Also  Declaration  of  the  Princes  of  the  Empire,  ann.  1274,  in 
Raynald,  ann.  nr.  11  :  et  ii  duo  gladii  in  domo  domini  constituti, 
intirnae  dilectionis  foedere  copulati,  exsurgant  in  reformationem 
universi  populi  Christiani.  Likewise  Rudolf  I. ;  see  also  citations  in 
Hofler,  p.  121  fif.  Eng.  Volk,  De  ortu,  c.  22.  Joh.  Paris,  c.  14. 
Definition  of  Rights  in  Ficker,  op.  cit.  p.  710,  art.  4,  ann.  1338. 
Quaest.  in  utramque  partem,  p.  105,  ad.  11.  Ockham,  Octo  q.  i.  c.  3 
and  14.  Miles  in  Somn.  Virid.  i.  c.  49 — 54.  Ant.  Ros.  iii.  c.  15— 
18.  Johannes  in  Introduction  to  the  Briinner  Schoffenbuch.  But 
the  idea  of  'harmonious  concordance'  between  two  powers  which  are 
two  vital  functions  of  the  one  mystical  body  attains  its  most  splendid 
form  in  the  hands  of  Nicholas  of  Cues:  especially,  iii.  c.  i,  12  and  14. 

46.    Hugh  of  Fleury  teaches  on  the  one  hand  that  the  bishops  Supe- 
are  subject  to  the  royal  power,  '  non  natura,  sed  ordine,  ut  universitas 
regni  ad  unum  redigatur  principium,'  even  as  Christ  is  subject  to  the  Spirituals 
Father  (i.  c.  3,  and  11.  p.  58  and  65),  and,  on  the  other  hand,  that  g^^^^^j^ 
kings  are  subject  to  the  spiritual  power  (i.  c.  7,  p.  30  ff.,  c.  9 — 10,  Tem- 

PP-  53—5,  59—60).  He  blames  Gregory  VII.  (11.  p.  58),  and  P°'^^'- 
even  concedes  the  royal  appointment  of  bishops,  subject  however  to 
the  approval  of  the  ecclesiastical  power  and  to  spiritual  investiture 
(i.  c.  5,  and  II.  p.  57).  Joh.  Par.  c,  14.  Qu.  in  utr.  a.  4.  Ock.  Oct. 
qu.  III.  c.  3,  8  and  Dial.  iii.  tr.  2,  1.  i,  c.  24.  Som.  Vir.  11.  c.  112, 
114,  124.  Theod.  a  Niem,  Priv.  p.  785.  Nic.  Cus.  iii.  c.  i,  4. 
Ant.  Ros.  I.  47,  48,  56,  63.  64,  III.  c.  16,  21  and  the  summary 
in  56  :  the  vwnarchia  diviiia  and  inoiiaTchia  temporalis  are  co- 
ordinated by  God ;  each  is  subject  to  the  other  in  that  other's 
province;  and  'mixed'  affairs  should  be  treated  by  'mixed'  councils. 
As  to  particulars: — the  subjection  of  Emperor  and  Princes  to  the 
Church  ratione  fidei  et  peccati  is  conceded  (see  Host,  de  accus. 
nr.  7  and  see  the  admission  in  the  Sachsenspiegel,  iii.  a.  54,  §  3  and 
57,  §  I,  that  the  Kaiser  is  wuthin  the  'rightful'  ban  of  the  Church); 
also  princes  are  in  duty  bound  to  lend  to  the  Church  the  aid  of  the 
lay  arm  (Dictum  Gratiani  before  Dist.  97  and  after  c.  28,  C.  23,  q.  8 ; 
Const,  of  1220,     7,  M.  G.  L.  11.  236  ;  Sachsensp.  i.  a.  i;  Gerson, 


1 24  Political  Theories  of  the  Middle  Age. 


IV.  606  and  619);  but,  on  the  other  hand,  a  temporal  jurisdiction 

over  the  priesthood  in  temporal  causes  is  asserted  (Ockham,  Octo 

qu.  III.  c.  2;  and  Dial.  i.  6,  c.  i — 65,  91  — 100,  iii.  tr.  2,  1.  3,  c. 

16 — 23  ;  Ant.  Ros.  i.  c.  29,  30,  53,  63  ;  Gloss  on  Sachsensp.  i.  a.  i). 
Occasional  47-  Jo^^-  Paris,  c.  14  and  18  (per  accidens).  Lup.  Bebenb. 
feJenceof  ^'  P*  ^^^^  3^5'  3S6  (necessitas  facti  aut  iuris).  Ockham,  Octo 
Pope  in  qu.  I.  c.  it,  II.  c.  4,  7 — 9,  12,  14,  III.  c.  2,  iv.  c.  3,  VIII.  c.  5,  and 
Affairr^^  Dial.  III.  tr.  i,  1.  i,  c.  16  and  1.  3,  c.  4  (casualiter  in  defectum 

iudicis).    Somn.  Virid.  i.  c.  150 — 151,  164 — 165,  11.  c.  4 — 12,  136. 

Ant.  Ros.  III.  c.  22.    Gloss  on  Sachsensp.  i.  a.  i,  iii.  a.  52  and  57. 

Klagspiegel,  119. 

Occasional  4^.  Petrus  Crassus,  pp.  27  and  31  (right  to  summon  a  Council); 
ference  of  P'  4^  (^^g^"^  '^^  judgment  on  a  Pope).     Hugo  Floriac.  11. 

Kaiser  m  pp.  57—9  (appointment  of  Popes  and  decision  of  ecclesiastical 
Affairs^^    disputes).    Nilus  arch.  Thessal.  De  primatu,  1.  11.  p.  38.    Joh.  Paris. 

c.  14.  Mich,  de  Caes.  ep.  Gold.  11.  pp.  1244 — 1261.  Petrarca,  ep. 
XV.  ib.  1365.  Ockham.  Octo  q.  i.  c.  12,  17,  11.  c.  7,  iii.  c.  8,  iv.  c.  6; 
Dial.  III.  tr.  2,  1.  2,  c.  2  —  15,  1.  3,  c.  2  and  4.  Randuf,  De  mod.  un. 
c.  15  and  20.  Nic.  Cus.  iii.  c.  15  and  40  (the  Emperor  may  himself 
undertake  ecclesiastical  reforms).  Zabar.  c.  6,  X.  i,  6,  nr.  15,  and 
De  schism,  p.  689  ff.  Greg.  Heimb.  in  Gold.  i.  561—563.  Ant. 
Ros.  I.  c.  48,  II.  c.  24,  25,  III.  c.  3.  Decius,  Cons.  [51,  nr.  13. — 
Even  the  papalists  concede  certain  rights  which  they  explain  as 
flowing  from  the  Emperor's  advocatia  over  the  Church  (Gloss  on 
c.  34,  X.  1,6,  v.  carebit) :  thus  the  right  to  call  a  Council  is  conceded 
by  Aug.  Triumph,  i.  q.  3,  a.  2,  and  q.  5,  a.  6,  by  Petrus  a  Monte, 
II.  nr.  5,  and  others,  but  contested  by  Alv.  Pel.  i.  a.  22.  The  papalists 
help  theuiselves  over  historical  instances  of  the  exercise  of  imperial 
rights  (especially  in  the  matter  of  papal  elections)  by  referring  such 
instances  to  concessions  which  the  Church  has  revoked:  e.g.  Landulf. 
Col.  De  transl.,Imp.  c.  6;  Aug.  Triumph,  i.  q.  2,  a.  7  ;  Alv.  Pel. 
I.  a.  I,  and  37  Bb  and  cc. 
Unity  49-    See  esp.  Thom.  Aquin.  Summa  cont.  gent.  iv.  76  (sicut  est 

^Jthm^the  ^^i.;^  ecclesia,  ita  oportet  esse  unum  populum  Christianum,  with  one 
caput  and  one  regiineti) ;  Lect.  2  ad  Ephes.  iv.  (the  ecclesia  as  civitas 
etc.);  Comm.  ad  Ps.  45.  Alv.  Pel.  i.  a.  7,  13,  24^ — 8,  36 — 8  and 
esp.  63. 

Tj^e  50.    For  this  reason  the  power  of  the  Church  and  of  its  earthly 

Church      Head  comprises,  though  to  a  disputable  extent,  all  the  infidels  in  the 
Infidels,     world,  nay,  it  covers  all  past  and  future  Mankind  and  so  reaches  into 
heaven  and  hell.    See  Thom.  Aquin.  Sum.  Theol.  11.  2,  q.  10 — 12, 
and  III.  q.  8,  a.  i — 3;  Host,  upon  c.  8,  X.  3,  34;  Aegid.  Rom.  De 


Notes. 


125 


pot.  eccl.  II.  c.  7;  Aug,  Triumph,  i.  q.  18,  23 — 4  and  29 — 35  ;  Alv. 
Pel.  I.  a.  13  A,  37  F — N,  40,  57  ;  Somn.  Virid.  11.  35  ;  Ant.  Ros. 
IV.  c.  I. 

51.  In  the  eyes  of  the  papaHsts  this  is  self-evident.    Gloss  on  The 

c.  3,  X.  I,  41,  V.  ininoris:  ecclesia  fungitur  iure  imperii.  Hostiensis,  ^ gj^te 
Summa  de  r.  i.  i.  nr.  4:  ecclesia  respublica  est,  quia  ius  publicum  Polity  or 
consistit  in  sacris  et  in  sacerdotibus.  Thom.  Aquin.  as  above  in 
Note  49.  Alvarius  Pelagius,  i.  a.  61 — 3,  goes  furthest:  the  Church 
is  a  regnuf?i,  and  indeed  the  one  universal,  holy  and  complete 
Realm ;  and  to  it  the  whole  of  the  '  Aristotelic-Thomistic '  theory  of 
the  State  is  applied. — But  even  the  Opposition  disputes  only  the 
worldly  nature  of  the  Church,  and  does  not  deny  to  it  the  character 
of  a  politia  with  magistrature  and  coercive  power ;  see  above  Note  42. 
Gerson  and  other  writers  of  the  same  group  declare  that  the  Church 
is  a  communitas,  respublica^  politia  iuris,  to  which  everyone  must 
belong;  see  e.g.  Gerson,  Op.  iii.  p.  27  ;  Randuf,  I)e  modis  uniendi, 
c.  2  (ib.  II.  p.  163) :  ecclesia  Christi  est  inter  omnes  respublicas 
aut  societates  recte  ordinatas  a  Christo  superior. — The  treatment 
of  heresy  as  crimen  laesae  maiestatis  (Innoc.  III.  and  Gerson, 
III.  pp.  33,  63)  and  all  coercion  of  conscience  have  their  roots  here, 

52.  Ockham,  Octo  qu,  i,  c,  1  and  30,  and  iii,  c,  2  and  8 ;  Dial,  The 
III,  tr,  2,  1,  I,  c,  3  and  8,  1.  3,  c,  17,    See  also  Gerson,  Trilogus,  Op.  Qf  ^^^^^^ 
II.  p.  88,  for  some  similar  opinions  that  were  expressed  in  his  day.  —  temal 
Marsilius  denies  to  the  Church  coercive  power  even  in  spirituals,  and  yjjj^^^g(j 
this  implies  the  negation  of  the  necessity  of  External  Unity.  Gregory 

of  Heimburg,  i.  p.  557  ff.  goes  near  to  this. 

52  a.    See  Lechner,  Joh.  v.  Wiclif,  i.  p.  541,  and  11.  p.  233.  The 

53.  See  above  all  Dante,  Mon.  i.    Also  Engelb.  Volk.,  De  ortu,  Church  as 

'     _  o  5  ?  conceived 

c.  14,  15,  17  —  18;  De  reg.  princ.  vii.  c.  32.    Ockham,  Dial.  iii.  by  Wyclif 

tr.  2,  1.  I,  c.  I.    Petrarca,  ep.  vii.  (et  in  terra  et  in  coelo  optima 

r  •         •  •     •  \        1  .         -r^  Univer- 

semper  luit  unitas  principatus)  and  ep,  viii,  p.  1355.    Ant.  Ros.  sality 

I-  c.  5 — 7.    Aen.  Sylv.  c.  4,  10,  12.  of  the 

54.  Following  in  the  steps  of  Augustine,  De  civit.  Dei,  v.  c.  15,  L^^^i-^* 
theorists  elaborately  prove  that  the  Romans  subdued  the  world  de  macy 
iure^  though  at  times  they  were  guilty  of  violence.     The  chief  ^J'^an 
argument  consists  in  the  many  miraculous  'judgments'  in  which  Empire. 
God  manifested  his  choice  of  the  Romans,  on  account  of  their 
political  virtues,  to  be  the  wielders  of  that  officium  iinperii  for  which  ^ 
they  were  the  aptum  organum.    Thereby  He  legitimated  their  wars 

and  victories.  Also  it  is  opined  that  in  all  their  conquests  they 
unselfishly  kept  '  the  common  good '  before  their  eyes,  and  that  this 
end  justified  the  means.    Comp.  esp.  Dante,  11,  c,  i — 11;  Engelb, 


126  Political  Theories  of  the  Middle  Age. 


Transfer 
of  the 
Empire. 


Universal 
Extent 
of  the 
Empire. 


Volk.  De  ortu,  15,  t8;  Petrarca,  ep.  vii.  p.  1355;  Baldus,  1.  i, 
C.  I,  I  ;  Aen.  Sylv.  c.  3 — 5  ;  Pelr.  de  Andlo,  i.  c.  4 — 10 ;  Ant.  Ros. 
V.  c.  I — 2,  15 — 24;  and  so  also  ecclesiastical  writers  (e.g.  Ptol.  Luc. 

III.  c.  4 — 6  ;  AlV.  Pel.  i.  a.  42)  even  though  they  do  not  allow  that 
this  imperium  was  verum.  Then  the  lawyers  add  references  to  the 
Corpus  luris  (esp.  I.  9,  D.  14,  2),  to  the  legitimacy  of  the  titles 
{testameiita  and  hella  iusta)  by  which  dominion  was  acquired,  and  to 
the  retroactive  validation  by  voluntary  subjection.  Comp.  Engelb. 
Volk.  c.  11;  Ockham,  Dial.  iii.  tr.  2,  1.  i,  c.  27  and  1.  2,  c.  5: 
consensus  maioris  partis  mundi :  a  corrupt  intent  does  not  prevent 
acquisition  of  rights.  Ant.  Ros.  v.  c.  i — 30  :  an  elaborate  demon- 
stration of  the  legitimacy  of  the  Empire  according  to  ius  divinum, 
naturale,  gentium  et  civile. 

55.  Comp.  Jord.  Osnab.  c.  i,  p.  43  ff.  and  c.  8.  Dante,  Mon. 
II.  c.  12 — 3.    Eng.  Volk.  c.  II  and  20.    Ockham,  Octo  qu.  11.  c.  5, 

IV.  c.  3,  VIII.  c.  3  and  Dial.  iii.  tr.  2,  1.  2,  c.  5.  Aen.  Sylv.  c.  6 — 8  : 
general  utility  required,  Nature  invented,  God  granted,  His  Son 
hallowed,  the  consent  of  men  confirmed,  the  Roman  empire.  Ant. 
Ros.  v.  c.  18  and  29. — The  strictly  ecclesiastical  doctrine  differed  a 
little  from  this  : — Christ  Himself  took  over  the  Empire,  allowing 
Augustus  to  govern  as  His  Vicar  ;  He  then  substituted  for  Himself 
Peter  and  Peter's  successors,  and  the  subsequent  emperors  were  their 
vicars;  and  finally  He  caused  Constantine  to  recognize  this  relation- 
ship by  the  so-called  Donation;  Ptol.  Luc.  iii.  c.  13 — 18;  Petr.  de 
Andlo,  I.  c.  II  and  13;  comp.  Ockham,  Octo  qu.  11.  c.  15. — Men 
are  unanimous  that  the  existing  Reich  is  identical  with  that  of  the 
Caesars;  Petr.  Crassus,  p.  26;  Dante,  1.  c. ;  Ockham,  Octo  q. 
II.  c.  5,  IV.  c.  3,  5,  7,  VIII.  c.  3,  Dial.  iii.  tr.  2,  1.  i,  c.  25  and  27. 
Only  Lupoid  v.  Bebenburg  brings  into  play  the  rights  that  Karl 
the  Great  had  before  he  was  crowned  Emperor ;  and  against  this 
Ockham,  Octo  qu.  iv.  3,  protests. — Also  men  are  unanimous  that 
the  present  Greek  Emperor  is  no  longer  a  true  Emperor,  since  he  is 
no  longer  united  to  the  true  Church  :  Joh.  Gal.  in  appar.  Tancr. 
upon  Comp.  iii.  in  Schulte,  Abhand.  [Vienna  Acad.]  vol.  66, 
p.  131;  Gloss  upon  c.  34,  X.  i,  6,  v.  transtulit  in  Germanos; 
Bartolus,  1.  24,  Dig.  de  capt.  49,  15  ;  Ubertus  de  Lampugnano,  op. 
cit. ;  Joh.  de  Platea,  1.  un.  Cod.  11,  20;  Tengler,  Laiensp.  56. 

56.  S.  Bernh.  ep.  ad  Lothar.  in  Gold.  p.  66;  ad  Conr.  ib.  p.  67. 
Otto  Frising.  Gesta,  i.  c.  23,  Chron.  vii.  c.  34.  Land.  Col.  De 
transl.  c.  10:  super  omnes  reges  et  nationes  est  dominus  mundi. 
Gl.  on  II.  Feud.  53  pr.  Pet.  de  Vin.  ep.  i.  c.  i,  2;  vi.  c.  30.  Alv. 
Pel.  I.  a.  37  and  57;  11.  a.  29.    Lup.  Bebenb.  c.  11,  13,  16.  Ockham 


Notes. 


127 


Octo  q.  IV.  c.  5  and  viii.  c.  3.  Gloss  on  Sachsensp.  iii.  a.  57. 
Baldus,  1.  I,  Cod.  t,  i,  nr.  i  ff.  and  11.  Feud.  53  pr.  Theod.  a  Niem. 
p.  785.  Randuf,  De  mod.  un.  c.  5  and  14  (p.  167  and  180).  Alex. 
Tart.  1.  26,  Dig.  36,  i,  nr.  2.  Aen.  Sylv.  c.  10.  Pet.  de  Andlo  11. 
c.  2.  Tengler,  Laiensp.  56.  The  Empire  comprises  de  iure  even 
the  infidels ;  Job.  Gal.  and  Gloss  on  c.  34,  X.  t,  6 ;  Eng.  Volk.  c.  18 
(for  even  they  are  bound  to  us  iure  naticrali  vel  gentium);  Ockham, 
Dial.  III.  tr.  2,  1.  2,  c.  5;  Ant.  Ros.  i.  c.  56. — The  content  of  the 
imperial  rights  is  variously  defined.  Lupoid  of  Bebenburg,  c.  15, 
distinguished  imperial  and  mediatized  lands :  in  the  latter  the 
Emperor  has  immediate  jurisdiction  only  over  the  rulers  and  a 
mediate  jurisdiction  over  the  subjects  in  case  of  default  of  justice, 
or  the  like.  Ockham,  Octo  qu.  iv.  c.  3,  8,  9,  viii.  c.  4:  the  Emperor 
is  a  Superior  with  right  to  decide  matters  that  the  king  cannot 
decide,  and  with  power  to  perform  certain  'reserved'  acts;  also 
(v.  c.  6)  with  power  to  make  new  kings  in  provinces  that  have  none. 
Aeneas  Sylvius  still  asserts  a  true  feudal  lordship  over  all  princes 
and  peoples ;  they  all  have  their  temporalities  from  the  Kaiser  and 
owe  him  obedience  (c.  10);  he  has  a  right  of  'correction,'  may  issue 
commands  pro  salute  commimi,  impose  taxes,  demand  auxiliary 
troops,  right  of  transit,  provisions  (c.  14);  he  may  decide  disputes 
among  sovereigns.  Petr.  de  Andlo  (11.  c.  8):  legislation,  protective 
lordship,  taxation,  suzerain  power.  Nich.  of  Cues  (iii.  c.  6 — 7) 
pares  down  the  imj)e?'ium  mundi  until  it  is  a  general  care  for  the 
common  weal  of  Christianity  especially  in  matters  of  faith. 

57.  Jordan.  Osnabr.  c.  i,  p.  43  ff.  and  c.  10,  p.  90.    Engelb.  The 
Volk.  c.  20—4.    Aug.  Triumph.  11.  p.  42.    Baldus  sup.  pace  Const.  i^^dSmic- 
V.  i77ip.  clem.  nr.  8.    Joh.  de  Platea,  1.  2,  C.  11,  9,  nr.  2.    Aen.  Sylv.  tible  ^/(f 
c.  8.    Ant.  Ros.  i.  c.  67.    Petr.  de  Andlo,  11.  c.  20. 

58.  The  most  important  employment  of  this  principle  is  the  The 

invalidation  of  the  Donation  of  Constantine.    Dante  iii.  c.   lo  hidestruc- 

(scissa  esset  tunica  inconsutilis :  superius  dominium,  cuius  unitas  til^le  de 
....  ■      \  ■     ■  ^1  .  hire. 

divisionem  non  patitur) ;  Quaestio  in  utramque  p.  106,  ad.  14;  Ant. 

Ros.  I.  c.  64 — 6,  70.    See  below,  Note  283.    But  the  principle  is 

also  turned  against  kings  and  republics.    Lup.  Bebenb.  c.  11  and  15: 

true,  that  by  privilege  or  prescription  hereditary  kingships  may  be 

founded  and  kings  may  acquire  imperial  rights  in  their  realms  and  so 

far  as  concerns  {quoad)  their  subjects;  but  this  is  only  prescription 

quoad  quid.,  and  the  Kaiser's  suzerainty  is  always  reserved.  Ockham, 

Octo  q.  III.  c.  7,  IV.  c.  3 — 5,  VIII.  3 — 4;  Dial.  iii.  tr.  2,  1.  i,  c.  18, 

1.  2,  c.  5 — 9,  23.    Alv.  Pel.  II.  a.  29.    Baldus,  1.  i,  Cod.  i.  i,  nr. 

13 — 22  and  II.  Feud.  53  pr.  Alex.  Tart.  1.  26,  Dig.  36,  i,  nr.  4.  Aen. 


1 28  Political  Theories  of  the  Middle  Age. 


Sylvius,  c.  II — 13  :  it  would  be  against  the  ius  naturae^  the  common 
weal,  the  command  of  Christ.    Petr.  de  Andl.  11.  c.  8 :  both  swords 
Exemp  equally  indivisible.    Bertach.  v.  iinperiujii. 

tion  from  59.  Land.  Col.  De  transl.  c.  10.  Quaestio  in  utramque  p.  98, 
pire^y^'  5'  P^oo^i^^-  Feud.  nr.  29 — 35. 

Privilege    Nicol.  Neap.  1.  6,  §  I,  Dig.  27,  I,  nr.  2.  Hier.  Zanetinus,  Diff.  nr.  102. 

^'■.P^"^-  60.    Comp.  Eng.  Volk.  c.  18.    Baldus,  11.  Feud.  53  pr.:  the 

scnption.  .  .  .  f 

Exemp-     Empire  would  still  remain  universale^  for  universale  and  integrum  are 

tions         not  all  one.    Comp.  prooem.  Dig.  nr.  22 — 35.    Nic.  Cus.  Cone.  iii. 

de°stroy"°^  c.  I,  6,  7  :  it  is  'imperium  mundi  a  maiori  parte  mundi,'  and  because 

theoretical  the  imperial  rights  still  remain,  at  least  so  far  as  concerns  the  protec- 

salitv!^      tion  of  the  Christian  faith. 

Necessity  61.  John  of  Paris,  c.  3  :  whereas  in  the  Church  unity  is  required 
of  an  ^  by  divine  law,  the  faithful  laity,  moved  by  a  natural  instinct,  which  is 
Realm  God,  should  live  in  different  States ;  this  difference  is  justified  by 

denied.  differences  between  soul  and  body,  word  and  hand,  unity  of 

church-property  and  division  of  lay  folk's  property,  unity  of  faith 
and  diversity  of  laws ;  also  appeal  is  made  to  Augustine ;  comp.  c. 
16,  22,  p.  210 — 2.  To  the  same  effect,  but  with  a  'perhaps,'  Gerson, 
II.  238.  Disputatio,  p.  686 — 7.  Somn.  Virid.  i.  c.  36:  only  within 
each  particular  realm  need  there  be  unity. — So  Marsilius,  though  he 
leaves  the  question  open,  remarks  that  the  unity  of  the  world  does 
not  prove  the  necessity  of  an  unicus  principatus,  since  a  pluralitas 
can  constitute  a  unity  (Def.  Pac.  i.  c.  17;  in  Transl.  Imp.  c.  12  he 
omits  Landulf's  mention  of  the  iviperiu7n  nnmdi). — On  the  other 
side,  see  Eng.  Volk.  c.  16  and  18;  Ant.  Ros.  11.  c.  4  and  7.  And, 
in  particular,  Ockham,  Dial.  iii.  tr.  2,  1.  i,  c.  i — 10.  Of  the  five 
possible  views  that  Ockham  mentions  he  seems  to  prefer  the  fifth, 
viz.  that,  according  to  circumstances,  sometimes  unity,  sometimes 
severance  will  be  desirable.  Comp.  1.  2,  c.  6 — 9. 
Wider  and  62.  See  Aegid.  Rom.  De  reg.  princ.  11.  i,  c.  2.  Engelb.  Volk. 
Gmups^^  De  ortu,  c.  15,  17,  18:  as  the  example  of  Universal  Nature  shows  a 
building-up  towards  Unity,  so  the  ordo  toUus  conimunitatis  publicae 
shows  an  ever-recurring  '  subalternation'  until  a  single  point  is 
reached:  above  every  common  weal  stands  a  commoner:  every 
lower  end  is  means  to  a  higher  end :  the  sum  total  of  this-worldly 
ends  is  means  to  an  other-wordly  end  :  the  'felicity' of  every  narrower 
depends  on  that  of  some  wider  community,  and  thus  in  the  last 
resort  on  the  fehcity  of  the  Empire.  Dante,  i.  c.  3  and  5.  See  also 
Aug.  Triumph,  i.  q.  i,  a.  6.  As  to  the  structure  of  the  Chuch,  see 
Gierke,  D.  G.  R.  vol.  iii.  §  8. 

63.    [The  difficulty  of  finding   an   exact  equivalent  for  the 


Notes. 


129 


German  Ztveck  has  hampered  the  translator.  Our  author  means  that 
in  the  medieval  scheme  each  Partial  Whole,  e.g.  a  village  commune, 
has  a  Sonderzweck,  an  aim,  object,  purpose  or  end  peculiar  to  it,  and 
distinct  from  the  Zweck  of  any  larger  whole,  e.g.  the  kingdom.] 
Dante  (i.  c.  3  and  5),  in  particular,  makes  this  plain.  For  him, 
every  composite  Being  (plura  ordinata  ad  unum)  has  its  Sondtrzweck 
which  makes  it  a  unit.  This  is  the  case  with  the  homo  smgularis,  the 
conummitas  domestica^  the  vicus,  the  civifas,  the  regnum.  No  one, 
however,  more  beautifully  expresses  the  idea  of  an  organic  articula- 
tion in  unity  and  a  relative  independence  of  members  in  a  'harmonious 
concord'  of  the  whole  body  than  does  Nicholas  of  Cues,  e.g.  11.  c. 
27 — 28.    Comp.  also  Ant.  Ros.  i.  c.  6. 

64.  See  Aegid.  Col.  11.  i,  c.  2  and  Dante  1.  c.  (they  throw  The 

.    .        •■  •  \         ^  ^         -r^-  1  i  graduated 

provtncia  and  regnum  mto  one);  Ockham,  Dial.  iii.  tr.  i,  1.  2,  c.  3 — 5.  Articula- 

[Elsewhere,  D.  G.  R.  iii.  356,  Dr  Gierke  has  stated  the  doctrine  of  of 
the  legists.  They  incline  towards  a  triple  gradation  of  local  ties. 
universitates,  (i)  vicus^  villa,  casirum,  oppidiwi,  (2)  civitas,  a  city- 
territory,  such  as  may  be  found  in  Italy,  (3)  provtncia  or  regnum.'] — 
Thom.  Aquin.  De  reg.  princ.  i.  c.  i,  distinguishes  familia,  civitas, 
provincia  {regnum).  Engelb.  Volk.  in  one  of  his  writings  (De  reg. 
prin.  II.  c.  2 — 3)  stops  at  the  civitas,  which  also  embraces  the 
regnum;  in  another  (De  ortu,  c.  7  and  12)  he  says  that  Aristotle 
distinguished  five  communities  ido?nus,  vicus,  civitas,  provincia, 
regnum,  to  which  iinperium  must  be  added,)  while  Augustine  made 
only  three  {do??ius,  urbs,  orbis). — Aug.  Triumph.  1.  c,  makes  five 
communitates  in  the  mystical  body  of  the  Church :  the  vicus  with 
a  parson,  the  civitas  with  a  bishop,  provincia  with  archbishop, 
regnum  with  patriarch,  communitas  totius  orbis  with  pope. — Ant.  Ros. 
I.  c.  6,  distinguishes  as  standing  above  the  individual  and  the  house- 
hold, five  '  corpora  mystica  universitatum ' :  (i)  communitas  tmius  vici, 
castri,  oppidi,  under parochus  and  magister;  (2)  civitaiis  under  bishop 
and  defensor',  (3)  provinciae  under  archbishop  and  praeses ;  (4)  regni 
under  primas  and  rex',  (5)  universi  orbis  under  Pope  and  Kaiser. 

65.  This  rich  development  of  thought  has  been  overlooked  by 
van  Krieken,  Die  sog.  organische  Staatstheorie,  pp.  26 — 39;  also 
Held,  Staat  u.  Gesellschaft,  p.  575  is  incorrect. 

66.  In  what  follows  we  shall  only  pay  heed  to  those  sides  of  the  '  The 
Organic  Comparison  [i.e.  the  comparison  of  the  body  politic  to  the  ^^^^^^ 
body  natural]  which  become  of  importance  in  legal  theory.    We  parison.' 
may,  however,  notice  in  passing  its  connexion  with  some  of  the 
pictorial  concepts  of  ecclesiastical  law  (e.g.  the  spiritual  marriage  of 

the  prelate  with  his  church,  the  family  relationship  of  a  daughter- 

M.  9 


130  Political  Theories  of  the  Middle  Age. 


church  to  a  mother-church)  and  with  some  poetical  allegories :  as 
e.g.  the  statue  of  Nebuchadnezzar's  dream  (cf.  Gerson,  iv.  662)  or  the 
installation  of  the  Empire  (Lup.  Beb.  ritmat.  querul.  in  Boehmer, 
Fontes,  i.  479).  The  application  to  the  Church  of  'the  Six  Ages' 
(Gold.  I.  p.  25  ff.  c.  3 — 7)  and  the  remarks  as  to  the  Ages  and  Faults 
of  the  Empire  in  Eng.  Volk.  De  ortu  et  fine,  c.  21  and  23,  show  the 
same  tendency. 

The  67.    See  e.g.  B.  Gregor.  in  c.  i,  Dist.  89.   Concil.  Paris,  ann.  829 

Bod'y  and  (^bove,  Note  7).    Jonas  of  Orleans  (above,  Note  7).    Gregory  VII. 

the  Pope    (above,  Note  45).    Ivo  of  Chartres  (above,  Note  20).    S.  Bern.  Ep. 

Head.  ^^4^  (above.  Note  7).    Gerhoh  of  Reichersp.  (above,  Note  7). 

Thorn.  Aquin.  (above.  Note  7).  Ptol.  Luc.  De  reg.  princ.  iii.  c.  10 
(above,  Note  12).  Gl.  on  c.  14,  X.  5,  31,  v.  uiium  corpus.  Innoc. 
c.  4,  X.  2,  12,  nr.  3.  Alv.  Pel.  i.  a.  13.  Joh.  Andr.  c.  4,  X.  i,  6, 
nr.  13.    Domin.  Gem.  c.  17  in  Sexto  i,  6,  nr.  4 — 16. 

Bicephal-        ^8.    Alv.  Pel.  I.  a.  13  F  and  a.  37  R — Q.   Somn.  Virid.  11.  c.  6  ff. 

ism  would  Ockham,  Dial.  iii.  tr.  i,  1.  2,  c.  i.    Aug.  Triumph,  i.  q.  5,  a.  i  and 
be  mon-  ,  .  ..... 

strous.      q«  I9j  a.  2:  the  Pope  is  'caput  universalis  ecclesiae...et  capitis  est 

influere  vitam  omnibus  membris.'    Elsewhere  (i.  q.  i,  a.  i  and  6)  he 

makes  the  Pope  the  vitalizing  heart,  and  then  (i.  q.  19,  a.  2)  says 

that  he  is  not  contradicting  himself,  since  in  metaphorical  discourse 

comparisons  may  be  varied  so  as  to  bring  out  various  likenesses. 

Johannes  Andreae,  Nov.  s.  c.  13,  X.  4,  17.    Card.  Alex.  D.  15,  and 

c.  3,  D.  21.    Ludov.  Rom.  Cons.  345,  nr.  3  ff.    Petrus  a  Monte,  De 

prim.  pap.  i.  nr.  16  (Tr.  U.  J.  xiii.  i,  p.  144). 

Need  for  a      69.    Engelb.  Volk.  De  ortu,  c.  15,  17,  18.    Petrarca,  Ep.  vii.  : 

H^'ad^'^^^  the  orbis  universus^  being  a  mag?ium  corpus^  can  only  have  unum 

caput  temporaky  for,  if  an  animal  biceps  would  be  a  monster,  how 

much  more  a  many-headed  beast.    Similarly  in  Ep.  viii.    Nic.  Cus. 

III.  c.  I  and  41.    Ant.  Ros.  i.  c.  67.    Petr.  de  Andlo,  11.  c.  2. 

70.    The  Knight  in  Somn.  Virid.  11.  c.  305 — 12. 

Possibility       71-    Lup.  Bebenb.  c.  15,  pp.  399,  401 :  not  duo  capita  in  solidum, 

of  Many-  ^^p^^f  mediatum  below  a  caput  immediatum,  like  kings  below  the 

ness.^  '     Emperor,  and  bishops  below  an  archbishop.    Quaestio  in  utramque 

partem,  p.  103.    Ockham,  Dial.  iii.  tr.  i,  1.  2,  c.  i  and  30 :  quamvis 

corpus  naturale  esset  monstruosum  si  haberet  duo  capita... tam en 

corpus  mysticum  potest  habere  plura  capita  spiritualia,  quorum  unum 

sit  sub  alio :  so  priests  and  king,  whose  head  is  God. 

-Pj^g  72.    [Elsewhere,  D.  G.  R.  iii.  112,  our  author  has  traced  this 

Priesthood  comparison  far  back  to  the  Apostolic  Constitutions,  Chrysostom, 

the^Body^  Gregory  of  Nazianzus  and  Isidore  of  Pelusium.]    Ivo  of  Chartres, 

Politic.      Ep.  106  (above.  Note  20).    Joh.  Saresb.  v.  c.  2,  3—5.    Alex.  Hal. 


Notes. 


131 


III.  q.  40,  m.  2.  Hugo  de  S.  Vict.  De  sacram.  1.  11.  p.  2,  c.  4. 
Honor.  Augustod.  Summa  gloria  de  praecel.  sacerd.  in  Migne,  vol.  172. 
Innocent  HI.  in  c.  6,  X.  i,  33  ;  Reg.  sup.  neg.  imp.  Ep.  18.  Thorn. 
Aquin.  Summa,  11.  2,  q.  60,  art.  6,  ad  3  (potestas  saecularis  subditur 
spirituali,  sicut  corpus  animae).    Ptol.  Luc.  tii.  c.  10.    Alv.  Pel. 

I.  a.  37  R.    Cler.  in  Somn.  Virid.  i.  c.  37,  43,  45,  47,  iot. 

73.  The  knight  in  Somn.  Virid.  (i.  c.  38,  44,  46,  48,  102,  The 

II.  102)  asserts  that  Christ  alone  is  the  Soul,  while  the  spiritual  and  ^ion^of^^ 
temporal  powers  are  the  two  principal  members,  head  and  heart,  Soul  by 
equally  directed  by  the  Soul,  but  endowed  with  separate  powers  and  ^^^^  ^^gg*. 
activities. — On  the  other  hand,  MarsiHus  sees  the  priesthood  as  no  tioned. 
more  than  one  among  many  members. 

74.  Nic.  Cus.  I.  c.  1 — 6,  III.  c.  I,  10,  41.    [The  main  part  of  The 

this  note  has  been  taken  into  our  text.    Cusanus  proceeds  to  show  Catholic 

^  Concord- 
the  parallelism  between  spiritual  and  temporal  assemblies :    e.g.  ance  of 

between  the  Cardmals  and  the  Prince-Electors.]  J!  Cuel^' 

75.  Joh.  Saresb.  v.  c.  2  :  est  respublica  corpus  quoddam,  quod  The  Body 
divini  muneris  beneficio  animatur  et  summae  aequitatis  agitur  nutu  Mystical, 
et  regitur  quodam  moderamine  rationis.    Vincent  Bellovac.  Spec.  Politic, 
doctr.  VII.  c.  8  :  to  the  like  effect :  de  corpore  reipublicae  mystico. 

Hugo  Floriac.  i.  c.  2  :  corpus  regni  :  also  c.  i,  3,  4.  Thom.  Aquin. 
De  reg.  princ.  i.  c.  i,  12 — 14;  Summa  Theol.  11.  i,  q.  81,  a.  i  :  in 
civilibus  omnes  homines  qui  sunt  unius  communitatis  reputantur 
quasi  unum  corpus  et  tota  communitas  quasi  unus  homo.  Ptol.  Luc. 
II.  c.  7  :  quodlibet  regnum  sive  civitas  sive  castrum  sive  quodcunque 
aliud  collegium  assimilatur  humano  corpori ;  iv.  c.  23.  Eng.  Volk. 
De  reg.  princ.  iii.  c.  16:  civitas  vel  regnum  est  quasi  quoddam 
unum  corpus  animatum ;  c.  19:  corpus  naturale ;  corpus  morale  et 
politicum.  Mars.  Pat.  i.  c.  15.  Ockham,  Octo  q.  viii.  c.  5,  p.  385  ; 
Dial.  III.  tr.  i,  1.  2,  c.  i;  tr.  2,  1.  i,  c.  i.  Gerson,  iv.  598,  600,  601. 
Zabar.  c.  4,  X.  3,  10,  nr.  2 — 3  :  ad  similitudinem  corporis  humani. 
Aen.  Sylv.  c.  18:  mysticum  reipublicae  corpus.  Ant.  Ros.  i.  c.  6  : 
five-fold  corpus  mysticum  (above,  Note  64).  Martinus  Laudens.  De 
repress.  (Tr.  U.  J.  xii.  279)  nr.  5  and  6  :  universitas  est  corpus 
mysticum  quod  continet  partes  suas,  i.e.  singulos  de  universitate. 
Bertach.  v.  capittdum,  f.  150,  nr.  4. 

76.  Joh.  Saresb.  v.  c.  i  ff.    The  servants  of  Religion  are  the  Anthropo- 
Soul  of  the  Body  and  therefore  have  principatuni  totius  corporis^  the  ^^'J^^jg 
prince  is  the  head,  the  senate  the  heart,  the  court  the  sides,  officers 

and  judges  are  the  eyes,  ears  and  tongue,  the  executive  officials  are 
the  unarmed  and  the  army  is  the  armed  hand,  the  financial  depart- 
ment is  belly  and  intestines,  landfolk,  handicraftsmen  and  the  like 

9—2 


1 32  Political  Theories  of  the  Middle  Age. 


are  the  feet,  so  that  the  State  exceeds  the  centipede  nu?nerositate 
pedum  ;  the  protection  of  the  folk  is  the  shoeing ;  the  distress  of 
these  feet  is  the  State's  gout  (vi.  c.  20). 
The  be-  -yy,    Joh.  Saresb.  v.  c.   1.     Compare  Wyttenbach,  Plutarchi 

Anthropo-  MoraHa,  Oxonii  1795,  i.  p.  Ixviii  ff.  ;  Schaarschmidt,  Joh.  Sares- 
morphism.  beriensis,  Leipzig  1862,  p.  123. — The  incitement  to  comparison  of 
particular  pieces  of  the  State  with  particular  members  of  the  human 
body  is  due  in  part  to  the  words  of  St  Paul  (see  esp.  in  c.  i, 
Dist.  89,  the  application  of  the  idea  of  7ne7nbra  in  corpore  to  the 
divers  officia  of  the  Church,  where  the  Apostle  is  vouched) ;  and  is 
also  due  to  a  continuous  tradition  of  the  pictorial  phrases  of  classical 
writers.    This  may  be  seen  already  in  Lex  Wisigoth.  11.  t,  §  4;  also 
in  the  ancient  Introduction  to  the  Institutes  in  Fitting,  Juristische 
Schriften  des  friiheren  Mittelalters  (Halle  1876),  p.   148,  §  20: 
Princeps  quasi  primum   caput... illustres   quasi  oculi...spectabiles 
manus...clarissimi  thorax... pedanei  pedes:  and  so  in  the  Church. 
Anthropo-       78.    Thus  Vincent.  Bellovac.  Spec.  doct.  vii.  c.  8 — 14;  close 
continued  ^o^^^"^^^^  ^^^^  John  of  Salisbury.    Ptol.  Luc.  11.  c.  7,  iv.  c.  11  and 
25  ;  vouching  the  Policraticus.    Engelb.  Volk.  De  reg.  princ.  iii. 
c.  16:  the  rulers  are  the  soul,  the  citizens  the  various  limbs:  'cui 
deputatur  a  natura  unumquodque  simile  membrum  in  corpore.' 
Aen.  Sylv.  c.  18. — Marsilius  is  freer  from  these  vagaries,  notwith- 
standing the  use  that  he  makes  of  his  knowledge  of  medicine, 
rpj^g  79.    Nic.  Cus.  I.  c.  10,  14 — 17,  and  iii.  c.  41.    In  the  *  Spiritual 

Anthropo-  Life,'  which  in  its  totality  represents  the  soul,  Christ  Himself  is  the 
and^tate-  single  heart,  whence  in  the  guise  of  arteries  the  canones  branch  in 
Medicine   every  direction,  so  that  even  the  Pope  does  not  stand  above  them 

?-fJr,o  but  must  fill  himself  with  them.  In  the  *  Corporal  Life '  the  offices 
sanus.  '■ 

from  the  Kaiser's  downwards  are  the  several  limbs,  the  leges  are  the 
nerves,  and  the  leges  imperiales  are  the  brain,  so  that  by  them  the 
head,  that  is,  the  Emperor,  must  be  bound.  The  patria  is  the 
skeleton  and  the  flesh  is  represented  by  changing  and  perishing 
hoi7iines.  The  health  of  the  State  consists  in  the  harmony  of  the  four 
temperaments.  Diseases  of  the  body  politic  should  be  treated  by  the 
Emperor  in  accordance  with  the  counsel  of  books  and  of  experienced 
state-physicians.  He  should  himself  test  the  medicine  by  taste, 
smell  and  sight  that  it  may  suit  time  and  place,  and  then  bring  it  to 
the  teeth  (privy  council),  stomach  (grand  council)  and  liver  (judicial 
tribunal)  for  digestion  and  distribution.  If  preservative  measures 
fail,  then  in  the  last  resort  he  must  proceed  to  amputation,  but  this 
will  be  cum  dolore  compassionis. 
80.    Joh.  Saresb.  vi.  c.  20—5. 


Notes. 


133 


81.  Thorn,  Aquin.  Summa  Theol.  iii.  q.  8  :  a  demonstration  Some 
that  ' tota  ecclesia  dicitur  unum  corpus  mysticum  per  similitudinem  Jf^hom 
ad  naturale  corpus  humanum':  Christ  the  head,  all  rational  creatures  Aquinas, 
the  members  of  this  body.    Aquinas  remarks,  however,  that  this  is 
similitude,  not  identity.    As  points  of  difference  he  notices  that  past 

and  future  men  are  members  of  the  mystical  body,  and  that  parts  of 
it  are  in  their  turn  independent  bodies,  so  that  there  may  be  divers 
heads  and  heads  of  heads  {caput  capitis)  corresponding  to  its  mani- 
fold articulation.  Then  the  various  Conditions  of  Grace  are  pictured 
as  internal  degrees  of  membership  (art.  3).  Then  he  explains 
Original  Sin  by  saying  that  all  born  of  Adam  may  be  considered  ut 
unus  hojno,  and  also  tanquam  multa  meinbra  unius  corporis,  but  that 
the  act  of  one  member  of  the  natural  body,  e.g.  the  hand,  *  non  est 
voluntarius  voluntate  ipsius  manus,  sed  voluntate  animae  quae  primo 
movet  membrum':  Summa  Theol.  i.  q.  81,  a.  i.  With  the  same 
idea  of  the  Body  Mystical  he  connects  the  doctrine  of  the  seven 
sacraments ;  whereof  two  operate  for  the  spiritual  and  bodily  main- 
tenance and  increase  of  the  Whole,  and  five  for  the  placing  of 
Individuals  in  the  way  of  grace  :  Summa  Theol.  iii.  q.  65  ff. ;  Summa 
cont.  gentil.  iv.  q.  58  ff.  ;  Lect.  2  ad  Rom.  12.  Also  the  differences 
of  ecclesiastical  office  and  calling  he  deduces  from  the  necessary 
existence  of  divers  members  in  the  one  body  with  the  one  soul; 
Lect.  2  ad  Rom.  12;  Lect.  3  ad  i.  Corinth.  12.  Comp.  Alv.  Pel. 
I.  a.  63.    Also  Catechism.  Rom.  P.  11.  c.  7,  q.  6. 

82.  Ptol.  Luc.  IV.  c.  23  :  therefore  Augustine  compares  the  State  Harmony 
to  a  melodious  song,  while  Aristotle  likens  it  to  a  naturale  et  ^y^I^%^^^ 
organicum  corpus. 

83.  Aegid.  Rom.  De  reg.  princ.  i.  2,  c.  12;  comp.  i.  i,  c.  13  ;  Co-ordina- 
III.  I,  c.  5  and  8;  iii.  2,  c.  34;  iii.  3,  c.  i  and  c.  23  (wars  the  ^^^l^^i^J 
medicine  of  human  society). 

84.  Eng.  Volk.  De  reg.  princ.  c.   16.     In   c.   18 — 31    the  Goods  of 
parallelism  is  displayed  in  the  matter  of  the  five  internal  bona  Qo^^g^of 
(sanitas,  pulchritudo,  magnitudo,  robur,  potentia  agonistica  regni)  Indi- 
and  the  six  external  bo?ta  (nobilitas,  amicitia,  divitiae,  honorabilitas, 
potentia,  bona  fortuna  regni). 

85.  Mars.  Pat.  i.  c.  2,  and  for  the  details  c.  15.    Comp.  c.  8,  17, 
and  II.  c.  24. 

86.  Ockham,  Octo  qu.  i.  c.  11,  and  viii.  c.  5,  p.  385.    Thus,  Mutually 
e.g.  the  lame  try  to  walk  with  their  hands  and  those  who  are  handless  ^ow^r 
must  take  to  biting :  sic  in  corpore  mystico  et  in  collegio  seu  univer-  among 
sitate,  uno  deficiente,  alius,  si  habet  potestatem,  supplet  defectum 

eius.    Comp,  Dial,  iii.  tr,  2,  1,  3,  c.  2  and  4,  where  the  common  and 


134  Political  Theories  of  the  Middle  Age. 


The  Idea 
of  Mem- 
bership. 


Likeness 
and  Un- 
likeness 
among 
Members. 


Mediate 
Articula- 
tion. 


specific  functions  of  clergy  and  laity  as  divers  members  of  the  Church 
are  distinguished,  and  at  the  same  time  it  is  remarked  that  in  the 
mystical  body  there  is  a  much  greater  call  than  there  is  in  the. 
natural  body  for  one  member  to  discharge  in  cases  of  necessity  the 
functions  assigned  to  another  by  positive  law. 

87.  Joh.  Saresb.;  see  above,  Note  75.  Thom.  Aq.  De  reg. 
princ.  I.  c.  12  ;  Summa  Theol.  11.  2,  q.  58,  a.  5,  iii.  q.  8,  a.  i  ;  and 
above,  Note  81.  Aegid.  Rom.;  above  Note  83.  Eng.  Volk.  iii.  c. 
16.  Alv.  Pel.  I.  a.  63  :  ecclesia  est...unum  totum  ex  multis  partibus 
constitutum  et  sicut  unum  corpus  ex  multis  membris  compactum  :  in 
details  he  follows  the  learning  of  S.  Thomas.  Baldus,  prooem.  Feud, 
nr.  32  :  imperium  est  in  similitudine  corporis  humani,  a  quo,  si 
abscinderetur  auricula,  non  esset  corpus  perfectum  sed  monstruosum. 
Nic.  Cus.;  above,  Note  79.  Aen.  Sylv.  c.  18.  Ant.  Ros.  i.  c.  67 
and  69. 

88.  Comp.  the  definition  of  ordo  (obtained  from  Aug.  De 
civ.  Dei,  1.  19,  c.  13)  in  Hug.  Floriac.  i.  c.  i  and  12,  p.  45  and  PtoL 
Luc.  IV.  9  :  parium  et  disparium  rerum  sua  cuique  loca  tribuens 
dispositio.  Then  Thom.  Aq.  (Summa  Theol.  i.  q.  96,  a.  3)  starting 
from  this,  concludes  that,  even  had  there  been  no  Fall  of  Man, 
inequality  among  men  would  have  developed  itself  '  ex  liatura  absque 
defectu  naturae';  for  'quae  a  Deo  sunt,  ordinata  sunt'  and  'ordo 
autem  maxime  videtur  in  disparitate  consistere.'  See  also  Summa 
adversus  gentiles,  iii.  c.  81. — Then  all  Estates,  groups,  professional 
gilds  and  the  like  appear  as  partes  civitatis  to  writers  who  rely  on 
Aristotle  :  especially  to  Marsilius  (11.  c.  5),  who  distinguishes  three 
partes  vel  officia  civitatis  (in  a  strict  sense),  namely,  the  military, 
priestly  and  judicial  orders,  and  three  partes  vel  officia  civitatis  (in  a 
wider  sense)  namely,  agriculture,  handicraft  and  trade.  A  similar 
idea  is  applied  to  the  Church ;  e.g.  by  Aquinas  :  see  above  Note  81. 
Alv.  Pel.  I.  a.  63  G  :  the  triple  distinction  in  the  Church  (despite  its 
unity)  according  to  status^  officia  et  gradus  is  likened  to  the  triple 
distinction  among  carnal  members  according  to  their  natures,  their 
tasks  and  their  beauties.  See  also  Randuf,  De  mod.  un.  c.  2 
(membra  inaequaliter  composita),  7  and  17. 

89.  Alv.  Pel.  I.  a.  36  c :  there  are  indivisible  members,  whose 
parts  would  not  be  members ;  e.g.  in  the  Church  the  faithful  man ; 
and  there  are  divisible  members,  whose  parts  in  their  turn  are  mem- 
bers, as  e.g.  the  'particular  churches'  and  ecclesiastical  colleges. 
Antonius  de  Butrio,  c.  4,  X.  i,  6,  nr.  14 — 5  :  membra  de  membro. 
Marsil.  Patav.  11.  24  :  in  the  regimen  civile^  as  well  as  in  the  regimen 
ecclesiasticum,  the  analogy  of  the  animal  requires  a  manifold  and 


Notes. 


135 


graduated  articulation  ;  otherwise  there  would  be  monstrosity ;  finger 
must  be  directly  joined,  not  to  head  but  to  hand ;  then  hand  to 
arm,  arm  to  shoulder,  shoulder  to  neck,  neck  to  head.  Nic.  Cus.  it. 
c.  27.  [Elsewhere,  D.  G.  R.  iii.  251,  our  author  gives  other  illus- 
trations from  Innocent  IV.,  Johannes  Andreae  and  others.] 

90.  Already  S.  Bernard  (De  consid.  iii.  p.  82)  exhorts  the  Pope  Papal 
to  pay  regard  to  the  potestates  mediocres  et  inferiores ;  otherwise  he  ^g^^ani 
will  be  putting  the  thumb  above  the  hand  and  alongside  the  arm  and  the 

so  will  create  a  monster :  *  tale  est  si  in  Christi  corpore  membra  ^^^tfcula- 
aliter  locas  quam  disposuit  ipse.'  Marsilius  (11.  c.  24)  employs  the  tion  of  the 
same  picture  when  complaining  that  the  Popes  have  impaired  the 
form  of  Christ's  mystical  body  by  disturbing  its  organic  articulation, 
while  that  body's  substance  is  impaired  by  the  corruption  of  the 
clergy.  The  champions  of  the  concihar  party  have  recourse  to  the 
same  analogy  for  proof  that  the  mystical  body  will  perish  if  all  power 
be  concentrated  in  its  highest  member.  See  Randuf,  c.  17  (183); 
Greg.  Heimb.  De  pot.  eccl.  11.  p.  1615  ff. 

91.  Ptol.  Luc.  II.  26,  where,  besides  the  organization  of  the  Organiza- 
natural  body,  that  of  the  heavenly  spheres  is  adduced.    Marsil.  Pat.  j^^g^d^*^ 
I.  c.  2  and  5  :  see  above,  p.  26.    Also  Thom.  Aquin.  Summa  cont.  pendence. 
gentil.  III.  c.  76 — 83.    Alv.  Pelag.  i.  a.  63  c  {prdinatio).    Eng.  Volk. 

III.  c.  21  :  in  ordinatione  debita  et  proportione  ad  invicem.-.partium. 
Nicol.  Cus.  III.  c.  I  :  omnia  quae  a  Deo  sunt,  ordinata  necessario 
sunt.    Petr.  de  Andlo,  i.  c.  3. 

92.  Joh.  Saresb.  1.  c.    Thom.  Aq.  Summa  Theol.  i.  q.  81,  a.  i;  The 

Lect.  2  ad  Rom.  12  :  in  corpore  humano  quaedam  sunt  actiones  l?^^ 

.  .  .  .  Function, 

quae  solum  principahbus  membris  conveniunt,  et  quaedam  etiam  soli 

capiti;  sed  in  ecclesia  vicem  capitis  tenet  papa  et  vicem  principaHum 

membrorum  praelati  maiores  ut  episcopi ;  ergo  etc. — Ptol.  Luc.  11.  c. 

23:  debet... quilibet  in  suo  gradu  debitam  habere  dispositionem  et 

operationem.    Marsil.  Pat.  i.  c.  2  (above,  p.  26)  and  c.  8  :  upon  the 

formation  and  separation  of  the  parts  of  the  State,  there  must  follow 

the  allotment  and  regulation  of  their  officia^  'ad  instar  naturae 

animalis.'   Alv.  Pel.  i.  a.  63  G  :  diversi  actus.    Ockham  ;  above.  Note 

86. 

93.  The  difference  between  an  organ  and  a  mere  limb  is  sug-  The  Idea 
gested  by  Eng.  Volk.  iii.  c.  16  :  pars  civitatis  and  pars  regni.  Comp.  ^  ^^^'^* 
also  Marsil.  Patav.  i.  c.  5  ;  above.  Note  88. 

94.  Thom.   Aq.   Summa  Theol.    i.  q.  96,  a.  4 :  quandoque  The 
multa  ordinantur  ad  unum,  semper  invenitur  unum  ut  principale  et  p°jl[^'"^"^ 
dirigens;  Summa  cont.  gentil.  iv.  q.  76.    Ptol.  Luc.  iv.  c.  23  :  there 

must  be  a  summum  movens  controlling  all  movements  of  the  limbs ; 


136  Political  Theories  of  the  Middle  Age, 


Connexion 
with  a 
Rightful 
Head. 


Need  for 
a  single 
Head 
denied. 


The  State 
a  work  of 
Human 
Reason. 


Marsilius 
on  the 


with  this  is  compatible  'in  qualibet  parte  corporis  operatio  propria 
primis  motibus  correspondens  et  in  alterutrum  subministrans.' 
Similarly  Dante.  Comp.  Aegid.  Col.  iii.  2,  c.  34  :  the  king  as  soul 
of  the  body.  Marsil.  Pat.  i.  c.  17:  in  the  State,  as  in  the  animal 
bene  compositum^  there  must  be  a  primu?n  principium  et  movens ; 
otherwise  the  organism  must  needs  '  aut  in  contraria  ferri  aut  omni- 
modo  quiescere ' : — this  is  the  pars  principans.  Joh.  Par.  c.  i  : 
quemadmodum  corpus  hominis  et  cuiuslibet  animalis  deflueret, 
nisi  esset  ahqua  vis  regitiva  communis  in  corpore  ad  omnium  mem- 
brorum  commune  bonum  intendens,  so  every  multitude  of  men  needs 
a  unifying  and  governing  force.  In  closely  similar  words,  Petr.  de 
Andlo,  I.  c.  3,  who  then  adds  that  among  the  summi  moventes  there 
must  be  unus  supremus  (the  Kaiser),  in  relation  to  whom  the  mem- 
bers that  are  moved  by  the  other  moventes  are  membra  de  membro. 

95.  See  above,  Notes  67  ff. 

96.  This  argument  is  often  adduced  on  the  papal  side  to  show 
that  the  Church  cannot  exist  without  the  Pope,  and  that  no  one  who 
is  not  connected  with  the  Pope  can  belong  to  the  Church.  Comp. 
e.g.  Alv.  Pel.  I.  a.  7,  13,  24,  28,  36,  38;  Card.  Alex.  D.  15  summa. 

97.  It  is  urged  that  there  may  be  unity  although  there  are  many 
rulers;  that  the principatus  as  an  institution  is  distinguishable  from  its 
occupant  for  the  time  being ;  that  the  mystical  body  may  be  headless 
for  a  time  :  in  particular  the  Church,  which  always  retains  its  celestial 
Head.  Thus,  Ockham,  Dial.  i.  5,  c.  13  and  24,  maintains  the  possi- 
bihty  of  the  continued  existence  of  the  Church  after  severance  from 
the  ecclesia  Ro7nana ;  for,  he  expressly  says,  though  the  similitude 
between  the  mystical  body  of  Christ  and  the  natural  body  of  man 
holds  good  at  many  points,  still  there  are  points  at  which  it  fails. 
To  the  same  effect  Petr.  Alliac.  in  Gerson,  Opera,  i.  692  and  11.  112; 
Gerson,  De  aufer.  pap.  11.  209  ff. ;  Randuf,  De  mod.  un.  c.  2,  ib.  163; 
Nic.  Cus,  I.  c.  14  and  17. 

98.  Comp.  Thom.  Aq.  Comment,  ad  Polit.  p.  366  (ratio... con- 
stituens  civitatem).  He  teaches  that  the  constitution  of  the  Church 
is  the  work  of  God  (Summa  adv.  gentil.  iv.  c.  76),  but  regards  the 
creation  of  the  State  as  a  task  for  the  kingly  office,  which  here 
imitates  the  creation  of  the  World  by  God  and  of  the  Body  by  the 
Soul  (De  reg.  princ.  i.  c.  13).  Ptol.  Luc.  iv.  c.  23.  Aegid.  Rom. 
De  reg.  princ.  iii.  i,  c.  i,  and  iii.  2,  c.  32.  Eng.  Volk.  De  Ortu, 
c.  I  (ratio  imitata  naturam).  Aen.  Sylv.  c.  i,  2,  4. — More  of  this 
below  in  Note  303. 

99.  Mars.  Pat.  i.  c.  15.  In  the  natural  organism  Nature,  the 
causa  movens,  first  makes  the  heart  which  is  the  first  and  indispensable 


Notes. 


137 


portion,  and  bestows  on  it  heat  as  its  proper  force,  whereby  the  Origin 
heart  then,  as  the  proper  organ  for  this  purpose,  constitutes,  sepa-  ^^^^l^ 
rates,  differentiates  and  connects  all  the  other  parts,  and  afterwards 
maintains,  protects  and  repairs  them.  On  the  other  hand,  the 
creative  principle  of  the  State  is  the  rational  '  anima  universitatis  vel 
eius  valentioris  partis.'  This,  following  the  model  set  by  Nature, 
generates  a  pars  pri??ia,  perfedior  et  nobilior^  answering  to  the  heart, 
and  being  the  Princeship  {prindpatus).  On  this  the  said  anima 
bestows  an  active  power,  analogous  to  vital  heat,  namely,  the 
auctoritas  iudicandi,  praecipiendi  et  exequendi.  Thus  the  Princeship 
is  empowered  and  authorized  to  institute  the  other  parts  of  the  State. 
But,  just  as  the  heart  can  only  work  in  the  form  and  power  that 
Nature  has  given  to  it,  so  the  Princeship  has  received  in  the  Law 
{lex)  a  regulator  of  its  proceedings.  In  accordance  with  the  measure 
set  by  the  Law,  the  Princeship  must  establish  the  different  parts  of 
the  State,  equip  them  with  their  officia,  reward  and  punish  them, 
conserve  them,  promote  their  co-operation,  and  prevent  disturbance 
among  them.  Even  when  the  State's  life  is  started,  the  Ruling  power, 
like  the  heart,  can  never  stand  still  for  an  instant  without  peril. 

100.  Thom.  x^q.  Summa  Theol.  11.  i,  q.  91,  a.  i  :  tota  com-  The 
munitas  universi  gubernatur  ratione  divina;  and  therefore  the  Monarchy 
ratio  gubernationis  reriim^  which  exists  in  God  sicut  in  principe 
universitatis^  has  the  nature  of  a  lex,  and  indeed  of  a  lex  aetema. 
Comp.  ib.  I.  q.  103  (although  according  to  a.  6  '  Deus  gubernat 
quaedam  mediantibus  aliis')  and  11.  i,  q.  93,  a.  3;  Summa  cont. 

gentil.  III.  q.  76 — 7.    Dante,  i.  c.  7,  and  iii.  c.  16.    And  see  above, 
Notes  7,  8,  II,  44,  67,  71. 

10 1.  See  above.  Note  15.    John  of  Salisbury  (Policr.  iv.  c.  i,  Divine 
pp.  208 — 9,  and  VI.  c.  25,  pp.  391 — 5)  is  especially  earnest  in  the  ^^g^^ate. 
maintenance  of  the  divine  origin  of  temporal  power.    Ptol.  Luc. 

(ill.  c.  I — 8)  gives  elaborate  proof  of  the  proposition  '  Omne 
dominium  est  a  Deo':  it  is  so  ratione  entis  (for  the  ens  primum  is 
the  principium) ;  and  it  is  so  ratione  finis  (for  all  the  purposes  of 
government  must  culminate  in  God,  who  is  ultimas  fi?tis).  Even 
dominium  tyrannicum  is  of  God,  who  suffers  it  to  exist  as  a  method 
of  chastisement,  but  Himself  will  not  leave  tyrants  unpunished. 
Then  Alv.  Pel.  (i.  a.  8  and  41  c — k)  repeats  this,  but  expressly  says 
that  it  does  not  disprove  the  sinful  origin  of  the  State.  He  (i.  a.  56  b) 
distinguishes  :  materialiter  et  inchoative  the  temporal  power  proceeds 
from  natural  instinct  and  therefore  from  God  :  perfecte  et  formaliter  it 
derives  its  esse  from  the  spiritual  power  '  quae  a  Deo  speciali  modo 
derivatur.' 


138  Political  Theories  of  the  Middle  Age. 


Imme-  102.    See  above,  Notes  38,  40,  44,  and,  as  to  the  Roman 

Dtvine       ^""P^'^'  ^""^^^  53-55- 

Origin  of        103.    Alv.  Pel.  I.  a.  12,  13  u  and  x,  18.    Aug.  Triumph,  i.  q.  i, 
the  State.  2,.  i  ;  a.  5  :  the  papal  power  comes  from  God  specialius  than  any 
^Christ^s  Other  power,  God  being  immediately  active  in  election,  government 
Vicar.       and  protection ;  still  He  does  not  immediately  generate  each  par- 
ticular pope  (as  He  generated  Adam,  Eve  and  Christ),  but  this 
happens  medianfe  homifie,  as  in  the  generation  of  other  men  ;  but 
the  electoral  college  only  has  the  designatio  personae,  for  auctoritas  et 
qffictujfi,  being  giiid  formale  in  papatu,  come  from  Christ  (q.  4,  a.  3)- 
Petr.  de  Andlo,  i.  c.  2. 
The  104.    See  above,  Note  40.    The  doctrine  of  the  Karolingian 

S"christ's  ^^^^  makes  the  Emperor  vicarius  Dei.  Then  during  the  Strife  over 
Vicar.  the  Investitures  this  is  for  the  first  time  attacked  ;  and  then  defended, 
e.g.  by  P.  Crassus,  p.  44,  by  Wenrich  (Martene,  Thes.  Nov.  Anecd. 
I.  p.  220),  and  by  the  Kaisers  and  writers  of  the  Hohenstaufen 
age.  Comp.  Dante,  iii.  c.  16:  solus  eligit  Deus,  solus  ipse  con- 
firmat ;  the  Electors  are  merely  deniintiatores  divinae  providentiae 
(though  sometimes,  being  blinded  by  cupidity,  they  fail  to  perceive 
the  will  of  God) ;  sic  ergo  patet  quod  auctoritas  temporalis  mon- 
archiae  sine  uUo  medio  in  ipsum  de  fonte  universalis  auctoritatis 
descendit;  qui  quidem  fons  in  arce  suae  simplicitatis  unitus  in 
multiplices  alveos  influit  ex  abundantia  bonitatis.  Bartol.  prooem. 
D.  nr.  14:  Deus... causa  efficiens.  Ant.  Ros.  i.  c.  47 — 8  and  56: 
the  Electors,  the  Pope  (in  so  far  as  he  acts  at  all)  and  the  Folk,  are 
only  organa  Dei;  so  the  Empire  is  immediate  a  Deo.  Gerson, 
IV.  p.  586. — Comp.  Ockham,  Octo  q.  11.  c.  i — 5,  and  iv.  c.  8 — 9, 
and  Dial.  iii.  tr.  2,  1.  i,  c.  18  ff.,  where  three  shades  of  this 
doctrine  are  distinguished,  for  we  may  suppose  (i)  a  direct  gift  by 
God,  or  (2)  a  gift  mi7iisterio  creaturae,  i.e.  by  the  agency  of  the 
Electors  (whose  action  may  be  likened  to  that  of  the  priest  in 
baptism,  or  that  of  a  patron  in  the  transfer  of  an  office),  or  (3)  a 
difference  between  the  purely  human  heathen  Empire  and  the 
modern  Empire  legitimated  by  Christ. 
Mediation  105.  Joh.  Saresb.  V.  c.  6  :  mediante  sacerdotio.  Aug.  Triumph. 
Church      I-      I'  ^-  I'  35>  a.  I,  q.  36,  a.  4  (mediante  papa),  q.  45,  a.  i. 

between  Alv.  Pel.  I.  a.  37  D  and  Dd,  41,  56,  59  e  (a  Deo... mediante  in- 
^dGod.  stitutione  humana).  Petr.  de  Andlo,  11.  c.  9:  imperium  a  Deo... per 
subalternam  emanationem.  So  in  the  Quaestio  in  utramque  (a.  5) 
and  the  Somnium  Virid.  (i.  c.  88,  180— i)  the  only  dispute  is 
whether  kings  are  immediately  or  but  mediately  mijiistri  Dei.  See 
above,  Note  22. 


Notes. 


139 


106.  See  Dante,  1.  c.    Pet.  de  Andlo,  i.  c.  2  :  regimen  mundi  a  Delega- 
summo  rerum  principe  Deo  eiusque  divina  dependet  voluntate ;  He  God  of  all 
institutes  the  pope  as  Vicar ;  from  the  pope  proceeds  the  imperialis  Human 
auctoritas ;  and  from  it  again  '  cetera  regna,  ducatus,  principatus  et 
dominia  mundi  subalterna  quadam  emanatione  defluxerunt.'  Also 

II.  c.  9.    Tengler,  Laienspiegel,  p.  14,  17,  56. 

107.  Thom.  Aq.  De  reg.  princ.  i.  c.  2  :  manifestum  est  quod  ^tonarchy 

^  ,  ,  and  Unity, 

unitatem  magis  erncere  potest  quod  est  per  se  unum  quam  plures ; 

and  c.  5;  Summa  Theol.  11.  i,  q.  105,  a.  i;  11.  2,  q.  10,  a.  11; 

Summa  cont.  gentil.  iv.  76  :  optimum  autem  regimen  multitudinis 

est  ut  regatur  per  imum ;  quod  patet  ex  fine  regiminis,  qui  est  pax : 

pax  enim  et  unitas  subditorum  est  finis  regentis ;  unitatis  autem 

congruentior  causa  est  unus  quam  multi ;  Comm.  ad  Polit.  p.  489  and 

507 ;  Aegid.  Rom.  De  reg.  princ.  iii.  2,  c.  3  ;  Dante,  i.  c.  5 — 9  and 

the  practical  arguments  in  c.  10 — 14;  Job.  Paris,  c.  i  ;  Alv.  Pel.  i. 

a.  40  D  and  62  c  ;  Ockham,  Octo  qu.  iii.  c.  i  and  3  ;  Dial.  iii.  tr.  i, 

I.  2,  c.  I,  6,  8,  9 — II  ;  Somn.  Virid.  i.  c.  187  ;  Gerson,  iv.  585  (ad 
totius  gubernationis  exemplum,  quae  fit  per  unum  Deum  supremum); 
Nicol.  Ciis.  III.  praef. ;  Laelius  in  Gold.  11.  p.  1595  ff. ;  Anton.  Ros. 

II.  c.  5 — 7  ;  Petrus  de  Andlo,  i.  c.  8 ;  Patric.  Sen.  De  regno,  i.  i  and 

P-  59  (unitas  per  imiiationem  ficta).  With  some  divergence 
and  greater  independence,  Eng.  Volk.  i.  c.  11 — 12:  novv-a-days 
only  a  monarchy  is  able  to  unite  wide  territories  and  great  masses 
of  men. 

108.  Dante,  i.  c.  15.  Similarly  Pet.  de  Andlo,  i.  c.  3  :  social  Singleness 
order  depends  on  a  sub-et-super-ordination  of  wills,  as  natural  order  Monarchy^ 
upon  a  sub-et-super-ordination  of  natural  forces. 

109.  Thom.  Aq.  Summa  cont.  gentil.  iv.  q.  76  :  the  regime?i  The 
ecclesiae,  being  of  divine  institution,  must  be  optime  ordinatum,  and  ^Xonarchy 
therefore  must  be  such  uf  unus  toti  ecclesiae  praesit.    Alv.  Pel.  i. 

a.  40  D  and  54.  Joh.  Par.  c.  2.  Ockham,  Dial.  iii.  tr.  i,  1.  2,  c.  i, 
3 — II,  18 — 19,  29;  also  I.  5,  c.  20 — 21.  Somn.  Virid.  11.  c.  168 — 
179.    Ant.  Ros.  II.  c.  I — 7. 

no.    Above  all,  Dante,  lib.  i. ;  in  c.  6,  it  is  argued  that  the  Divine 
ordo  totalis  must  be  preferable  to  any  ordo  partialis.    Eng.  Volk.  De  |jf^ygjj^^°" 
ortu,  c.  14 — 15.    Ockham,  Octo  q.  iii.  c.  i  and  3  ;  Dial.  iii.  tr.  2,  poral 
1.  I,  c.  I  and  9.   Aen.  Sylv.  c.  8.   Ant.  Ros.  11.  c.  6.   Petr.  de  Andlo,  ^lo^^^^^y- 
I.  c.  8. 

III.    Above,  Note  107.    Thom.  Aq.  1.  c. ;  it  is  so  in  every  populus  Monarchy 
unius  ecclesiae.    Compare  his  statements  (in  lib.  iv.  Sent.  d.  1 7,  q.  3,  ^^^j  Yoxm 
a.  3,  sol.  5,  ad  5)  as  to  the  relation  of  pope,  bishop,  and  parson  as  of  Govem- 
the  God-willed  monarchical  heads  '  super  eandem  plebem  immediate 


140  Political  Theories  of  the  Middle  Age. 


constituti.'    Dante,  i.  c.  6.    Petr.  de  Andlo,  i.  c.  8.    In  particular, 
x\nt.  Ros.  II.  c.  6  (above,  Note  64)  as  to  the  monarchical  structure  of 
the  five  corpora  ?nystica. 
References       112.    Thom.  Aq.  De  reg.  princ.  i.  c.  4.    Eng.  Volk.  De  reg. 
publics.     princ.  I.  c.  12 — 16.    Petr.  de  Andlo,  i.  c.  8.    Ant.  Ros.  11.  c.  4  (on 

the  other  hand,  c.  7,  pp.  314—9). 
Com-  113.    Ptol.  Luc.  II.  c.  8,  and  iv.  c.  8,  goes  so  far  as  to  hold  that 

FormTof^  in  the  status  integer  of  human  nature  the  regi??ien  politicum  would  be 
Govern-     preferable ;  and  even  in  the  corrupt  state  of  human  nature  the 
dispositio  geniis  may  decide  ;  thus  e.g.  the  courage  of  the  Italian  race 
leaves  no  choice  but  republic  or  tyranny.    Eng.  Volk.  i.  c.  16. 
Ockham,  Octo  q.  iii.  c.  3  and  7  (variances  in  accord  with  congruentia 
temporum);  also  Dial.  iii.  tr.  2,  1.  1,  c.  5. 
An  Aris-         114.    Ockham,  Octo  q.  iii.  c.  3,  6,  8,  and  Dial.  iii.  tr.  2,  1.  i, 
W^oHd'^     c.  I,  4,  9,  13:  it  is  possible  that  the  form  of  government  best  suited  to 
State.       a  part  may  not  be  the  same  as  that  best  suited  to  the  whole. 
Necessity        115.    Ockham,  Dial.  iii.  tr.  i,  1.  2,  c.  2,  12 — 4,  16 — 7,  25,  30. 
archy "      Even  with  an  aristocratic  constitution,  unity  is  possible  :  pluralitas 
in  the       pontificum  non  scindit  unitatem  ecclesiae :  what  is  good  for  a  pars 
doubted  parvum  may  not  be  always  good  for  a  totiwi  and  magnum.  The 

divine  institution  of  the  primacy  is  expressly  disputed  by  Marsilius, 
II.  c.  15 — 22,  III.  concl.  32  and  41,  and,  among  the  Conciliar 
pamphleteers,  by  Randuf  (De  mod.  un.  eccl.  c.  5)  and  others,  who 
are  opposed  by  d'Ailly,  Gerson,  and  Breviscoxa  (Gers.  Op.  i.  p.  662, 
11.  p.  88,  and  i.  p.  872). 
Preference       116.    Patricius  of  Sienna  in  one  place  (De  inst.  reip.  1.  i)  ex- 
pubHcan^  pressly  declares  for  a  Republic;  elsewhere  (De  regno  i.  i)  he  gives 
Form.       a  preference  to  Monarchy,  but  would  pay  heed  to  differences  between 
various  nations. 

'Unitas  TI7-    Mars.  Pat.  i.  c.  17  and  iii.  concl.  11  (even  for  composite 

pnnci-       States).    Ockham,  Dial.  iii.  tr.  2,  1.  ^,  c.  17  and  22. 

patus  ma  '  .  '  .  .  . 

Republic.        1 18.    Aegid.  Rom.  iii.  2,  c.  3:  plures  homines  pnncipantes 

Repub-     quasi  constituunt  unum  hominem  multorum  oculorum  et  multarum 

Assembly  rn^nuum  :  but  the  good  Monarch  might  become  such  a  collective 

as  a         rnan  by  the  association  of  wise  councillors ;  and  at  any  rate  he  is 

Man!^^^^^  more  unus  than  the  Many  can  be  'in  quantum  tenent  locum  unius.' 

— Mars.  Pat.  i.  c.  17  :  'quoad  officium  principatus '  the  plures  must 

form  a  unit,  so  that  every  act  of  government  appears  as  '  una  actio 

ex  communi  decreto  atque  consensu  eorum  aut  valentioris  partis 

secundum  statutas  leges  in  his.' — So  Ockham,  Dial.  iii.  tr.  2,  1.  3,  c. 

17,  with  the  addition   that  'plures  gerunt  vicem  unius  et  locum 

unius  tenent.' — Patric.  Sen.  De  inst.  reip.  i.  i  and  iii.  3  :  the  ruling 


Notes. 


141 


assembly  constitutes  'quasi  unum  hominem '  or  'quasi  unum  corpus' 
with  manifold  members  and  faculties  ;  i.  5  :  '  multitudo  universa 
potestatem  habet  collecta  in  unum  ubi  de  republica  sit  agendum, 
dimissi  autem  singuli  rem  suam  agunt.' 

119.  Thus  Dante,  Mon.  i.  c.  6,  sees  in  the  Ruler  'aliquod  unum  The 
quod  non  est  pars.'    So  again  Torquemada  seeks  to  refute  the  whole  above  and 
Conciliar  Theory  by  asserting  that  the  very  idea  of  a  Monarch  neces-  outside 
sarily  places  him  above  the  Community,  like  God  above  the  world  Group, 
and  the  shepherd  above  the  sheep  :  Summa  de  pot.  pap.  c.  26,  48, 

83,  84 ;  De  cone.  c.  29,  30,  44. 

120.  Joh.  Saresb.  Policr.   iv.    c.    i  :    est. . .princeps   potestas  The 
publica  et  in  terris  quaedam  divinae  maiestatis  imago;  v.  c.  25,  ^JpJ^^^g^^ 
p.  391 — 5.   Thorn.  Aq.  De  reg.  i.  c.  12 — 14:  the  erection  of  the  State,  Divinity, 
being  like  unto  God's  creation  of  the  world,  and  the  government  of 

the  State,  being  like  unto  God's  government  of  the  world,  are  the 
affairs  of  the  Ruler. 

121.  Gl.  on  c.  17  in  Sexto  i,  6,  v.  homini:  in  hac  parte  non  est  Apotheo- 
homo  sed  Dei  vicarius.    Gl.  on  prooem.  CI.  v.  papa  :  nec  Deus  nec  popg 
homo.    Petr.  Blesensis,  ep.  141.    Aug.  Triumph,  i.  q.  6,  a.  i — 3 
(identity  of  the  Pope's  sentence  with  God's,  and  therefore  no  appeal 

from  the  one  to  the  other);  q.  8,  a.  1 — 3,  q.  9,  q.  18.  Alv.  Pel.  i.  a.  13 
(non  homo  simpliciter,  sed  Deus,  i.e.  Dei  vicarius),  37  y  (Deus 
quodammodo,  quia  vicarius),  12  (unum  est  consistorium  et  tribunal 
Christi  et  Papae  in  terris).  Bald,  on  1.  ult.  C.  7,  50.  Ludov.  Rom. 
cons.  345,  nr.  6 — 8.  Zenzelinus  on  c.  4,  Extrav.  Joh.  XXII.  nr.  14. 
Bertach.  v.  papa. 

122.  Already  under  the  Hohenstaufen  a  formal  apotheosis  of  the  Apotheo- 
Emperor  may  be  often  found.  See,  e.g.  Pet.  de  Vin.  Ep.  11.  c.  7,  Emperor, 
and  III.  c.  44.    Bald.  i.  cons.  228,  nr.  7  :  imperator  est  dominus 

totius  mundi  et  Deus  in  terra;  cons.  373,  nr.  2  :  princeps  est  Deus 
in  terris.  Joh.  de  Platea,  1.  2,  C.  11,  9,  nr.  i  :  sicut  Deus  adoratur 
in  coelis,  ita  princeps  adoratur  in  terris ;  but  only  improprie.  Theod. 
a  Niem,  p.  786  :  to  the  Emperor  is  due  '  devotio  tanquam  praesenti 
et  corporali  Deo.'  Aen.  Sylv.  c.  23  :  dominus  mundi,  Dei  vicem  in 
temporaUbus  gerens.  Jason,  11.  cons.  177,  nr.  11:  princeps  mundi 
et  corporalis  mundi  Deus. 

123.  Thus  already  in  the  Councils  of  Paris  and  Worms  of  829  Kingship 
(M.  G.  L.  I.  p.  346  ff.)  we  find  an  exposition  of  the  doctrine  that  the  ^^'^^^ 
kingship  is  a  '  ministerium  a  Deo  commissum,'  that  the  Rex  is  so 

called  a  recte  agendo,  that,  ceasing  to  rule  well,  he  becomes  a 
tyrant.  Similarly  in  Concil.  Aquisgran.  11.  ann.  836  and  Concil. 
Mogunt.  ann.  888,  c.  2  in  Mansi  xiv.  p.  671  and  xviii.  62;  cf. 


142  Political  Theories  of  the  Middle  Age. 


Princes 
exist  for 
the 

Common 
Weal. 


Purpose 
of  the 
Ruler. 


Decline 
towards 
Tyranny. 


Hefele  iv.  p.  91  and  546.  Hincmar,  Op.  i.  693.  Manegold  v. 
Lautenbach,  I.e.,  expressly  uses  the  phrase  vocabuiutfi  officii.  John 
of  Salisbury,  iv.  c.  1 — 3  and  5,  says  'minister  populi'  and  '  publicae 
utilitatis  minister.'  Hugh  of  Fleury,  1.  c.  4,  6,  7,  '  ministerium, 
officium  regis.'  Thorn.  Aq.  De  reg.  prin.  i.  c.  14.  Alv.  Pel.  i.  a.  62,  i. 
Ptol.  Luc.  II.  5 — 16.  Dante,  i.  c.  12:  princes  are  '  respectu  viae 
domini,  respectu  termini  ministri  aliorum,'  and  in  this  respect  the 
Emperor  is  '  minister  omnium.'  Eng.  Volk.  tr.  11. — vii.  Gerson,  iv. 
p.  597.  Ant.  Ros.  I.  c.  64:  officium  publicum;  like  a  tutor.  Pet. 
de  Andl.  i.  c.  3,  11.  c.  16 — 18. 

124.  In  particular,  Joh.  Saresb.  iv.  c.  i — 3,  and  5.  Thom. 
Aquin.  De  reg.  lud.  q.  6  :  Principes  terrarum  sunt  a  Deo  instituti, 
non  quidem  ut  propria  lucra  quaerant,  sed  ut  communem  utiHtatem 
procurent ;  Comm.  ad  Polit.  p.  586.  Ptol.  Luc,  iii.  c.  11:  regnum 
non  est  propter  regem,  sed  rex  propter  regnum.  Eng.  Volk.  De  reg. 
princ.  V.  c.  9  :  sicut  tutela  pupillorum,  ita  et  procuratio  reipublicae 
inventa  est  ad  utilitatem  eorum  qui  commissi  sunt,  et  non  eorum  qui 
commissionem  susceperunt:  11.  c.  t8,  iv.  c.  33 — 4.  Dante,  i.  c.  12: 
non  enim  cives  propter  consules  nec  gens  propter  regem,  sed  e  con- 
verso  consules  propter  cives  et  rex  propter  gentem.  Ockham,  Octo 
q.  III.  c.  4,  and  i.  c.  6.  Paris  de  Puteo,  De  synd.  p.  40,  nr.  21. 
Petrus  de  Andio,  i.  c.  3. 

125.  Councils  of  Paris  and  Worms,  an.  829:  to  rule  the  Folk 
with  righteousness  and  equity,  to  preserve  peace  and  unity.  Petr. 
Bles.  Epist.  184,  p.  476  :  ut  recte  definiant  et  decidant  examine  quod 
ad  eos  pervenerit  quaestionum.  Dante,  Mon.  i.  c.  12.  Thom.  Aq. 
Comm.  ad  Polit.,  p.  592,  595  ff.  Eng.  Volk.  i.  c.  10.  Gerson,  iii. 
p.  1474.  Ockham,  Octo  q.  iii.  c.  5,  declares  a  plenitudo  potestatis 
incompatible  with  the  best  Form  of  Government,  which  should 
promote  the  liberty  and  exclude  the  slavery  of  the  subjects ;  and 
(viii.  c.  4)  he  opines  that  the  Kaiser  has  smaller  rights  than  other 
princes  just  because  it  behoves  the  Empire  to  have  the  best  of 
constitutions. 

126.  Councils  of  Paris  and  Worms,  an.  829.  Council  of  Mainz, 
an.  888,  c.  2.  Nicolaus  I.  Epist.  4  ad  Advent.  Metens. :  si  iure 
principantur ;  alioquin  potius  tyranni  credendi  sunt  quam  reges 
habendi.  Petr.  Bles.  1.  c. :  Principatus  nomen  amittere  promeretur 
qui  a  iusto  iudicii  declinat  tramite.  Hugo  Flor.  i.  c.  7 — 8.  Joh.  Sar. 
VIII.  c.  17 — 24.  Thom.  Aq.  De  reg.  princ.  i.  c.  3 — 11.  Ptol.  Luc. 
III.  c.  II.  Vine.  Bellov.  vii.  c.  8.  Eng.  Volk.  i.  e.  6  and  18. 
Alv.  Pel.  I.  a.  62  D — H.  Ockham,  Dial.  iii.  tr.  i,  1.  2,  c.  6  ff. ;  Octo 
q.  III.  c.  14.    Gerson,  I.e.    Paris  de  Puteo,  1.  c.  pp.  8 — 51. 


Notes. 


143 


127.  This  principle  was  never  doubted.    See  e.g.  Pet.  Bles.  ep.  God 
131,  p.  388.    Thom.  Aq.  Summa  Theol.  11.  i,  q.  96,  a.  4  (quia  ad  hoc  MarTis^to'^ 
ordo  potestatis  divinitus  concessus  se  non  extendit)  and  11.  2,  q.  104,  be  obeyed, 
a.  5.    To  the  same  effect  the  'Summists'  [i.e.  the  compilers  of 
Summae  Confessorum,  manuals  for  the  use  of  confessors],  e.g.  Joh. 
Friburgensis,  Sum.  Conf  lib.  2,  tit.  5,  q.  204. 

128.  Thus  Hugh  of  Fleury,  who  therefore  prescribes  that  tyrants  Passive 
be  tolerated  and  prayed  for,  but  that  commands  which  contravene  ^^c?^' 
the  law  of  God  be  disobeyed,  and  that  punishment  and  death  be 
borne  in  the  martyr's  spirit;  i.  c.  4,  p.  17 — 22,  c.  7,  p.  31,  c.  12,  p.  44, 

II.  p.  66. — Baldus  also  on  1,  5,  Dig.  i,  i,  nr.  6 — 7,  declares  against 
any  invasion  into  the  rights  of  Rulers. 

129.  Hug.  de  S.  Victore,  Quaest.  in  epist.  Paul.  q.  300  (Migne,  Nullity  of 
vol.  175,  p.  505):  Reges  et  principes,  quibus  obediendum  est      ^ands  that 
omnibus  quae  ad  potestatem  pertinent.    Thom.  Aq.  Sum.  Theol.  are  ultra 
II.  2,  q.  104,  a.  5 :  only  in  special  circumstances  or  for  the  avoidance  s^^jug^tis 
of  scandal  and  danger,  need  a  Christian  obey  the  command  of  an 
usurper  or  even  the  unrighteous  command  of  the  legitimate  ruler. 

So  also  Vincent  Bellov.  x.  c.  87  and  Joh.  Friburg  1.  c.  (Note  127). 
Ockham,  Dial.  iii.  tr.  2,  1.  2,  c.  20 :  all  men  owe  to  the  Emperor 
immediate  but  conditional  obedience  :  to  wit,  *'  in  Ileitis '  and  '  in  his 
quae  spectant  ad  regimen  populi  temporalis,'  so  that,  e.g.  a  pro- 
hibition of  wine-drinking  would  not  be  binding.  And  compare  c.  26 
and  28.  Nic.  Cus.  iii.  c.  5.  Decius,  Cons.  72,  nr.  2  :  superiori  non 
est  obediendum  quando  egreditur  fines  sui  officii. 

130.  Already  Manegold  of  Lautenbach  (see  Sitzungsber.  d.  bair.  Active 
Akad.  an.  1868,  11.  325)  teaches  that  the  king  who  has  become  a  ^^a^xy"^^ 
tyrant  should  be  expelled  like  an  unfaithful  shepherd.     Similar  rannicide. 
revolutionary  doctrines  were  frequently  maintained  by  the  papalistic 

party  against  the  wielders  of  State-power.  John  of  Salisbury 
emphatically  recommends  the  slaughter  of  a  tyrant  'qui  violenta 
dominatione  populum  oppremit,'  for  a  tyranny  is  nothing  else  than 
an  abuse  of  power  granted  by  God  to  man.  He  vouches  biblical  and 
classical  examples,  and  rejects  only  the  use  of  poison,  breach  of 
trust,  and  breach  of  oath.  See  Policr.  iii.  c.  15,  iv.  c.  i,  vi.  c.  24 — 8, 
VIII.  c.  17 — 20.  Thomas  of  Aquino  is  against  tyrannicide,  but  in 
favour  of  an  active  resistance  against  a  regimen  tyrannicum,  for  such 
a  regimen  is  non  iustum,  and  to  abolish  it  is  no  seditio,  unless  indeed 
the  measures  that  are  taken  be  such  that  they  will  do  more  harm 
than  would  be  done  by  tolerating  the  tyranny:  Sum.  Theol.  11.  2, 
q.  42,  a  2,  ad  3,  q.  69,  a.  4 ;  De  reg.  princ.  i.  c.  6  ;  Comm.  ad 
Polit.  p.  553.   To  the  same  effect,  Aegid.  Rom.  De  reg.  princ.  i.  c.  6. 


144  Political  Theories  of  the  Middle  Age, 


Plenitude 
of  Power 


There  is  an  elaborated  doctrine  of  active  resistance  in  Ockham,  Dial. 
III.  tr.  2,  1.  2,  c.  26  and  28  (it  is  ius  gentium).  Somn.  Virid.  i.  c.  141. 
Henr.  de  Langenstein,  Cons,  pacis,  c.  15.  Gerson,  iv.  600  and  624. 
Decius,  Cons.  690,  nr.  13.  Bened.  Capra,  Reg.  10,  nr.  42  :  the 
execution  of  a  tyrannical  measure  is  an  act  of  violence  which  may  be 
violently  resisted.  Henricus  de  Pyro,  Inst.  i.  2,  §  i  :  iudici  et 
ministris  principum  licet  resistere  de  facto  quando  ipsi  sine  iure 
procedunt. — As  to  the  thesis  in  which  Jean  Petit  on  8  March,  1408 
defended  tyrannicide  (Gerson,  Op.  v.  pp.  15 — 42),  the  opposition  of 
Gerson  (Op.  iv.  657 — 80)  and  the  qualified  condemnation  of  the 
thesis  by  the  Council  of  Constance  (sess.  xv.  of  6  July,  141 5),  see 
Schwab,  Gerson,  pp.  609 — 46.  Wyclif  (art.  damn.  15  and  17)  and 
Hus  (art.  30)  held  that  a  Ruler  who  is  in  mortal  sin  is  no  true  ruler. 
The  Pope's  131.  The  first  to  elaborate  in  idea  and  in  phrase  a  '  plenitudo 
ecclesiasticae  potestatis'  vested  by  God  in  the  Pope,  whence  all 
other  ecclesiastical  power  has  flowed  and  in  which  all  other  ecclesi- 
astical power  is  still  comprised,  was  Innocent  III.,  although 
substantially  the  same  doctrine  had  been  taught  by  Gregory  VII., 
lib.  I.,  ep.  55%  ann.  1075.  For  Innocent  III.  see  c.  13,  X.  4,  17  ; 
c.  23,  X.  5,  33 ;  lib.  I,  ep.  127,  p.  116,  lib.  7,  ep.  i  and  405,  pp.  279 
and  405,  lib.  9,  ep.  82,  83  and  130,  pp.  898,  901  and  947.  Compare 
Innocent  IV.  on  c.  i,  X.  i,  7 ;  c.  10,  X.  2,  2  ;  c.  19,  X.  2,  27,  nr.  6. 
Durantis,  Spec.  i.  i  de  legato  §  6,  nr.  i — 58.  Thom.  Aquin.  lib.  4, 
Sent.  d.  20,  q.  4,  a.  3,  ad  3,  quaestiunc.  4,  sol.  3  :  Papa  habet 
plenitudinem  potestatis  pontificalis  quasi  rex  in  regno,  episcopi  vero 
assumuntur  in  partem  sollicitudinis  quasi  indices  singulis  civitatibus 
praepositi.  See  also  lib.  2,  dist.  et  quest,  ult. ;  Summa  Theol.  11.  2, 
q.  I,  a.  10;  Opusc.  cont.  error.  Graec.  11,  c.  34  and  38.  Aegid. 
Rom.  De  pot.  eccl.  iii.  c.  9 — 12:  tanta  potestatis  plenitudo,  quod 
eius  posse  est  sine  pondere,  numero  et  mensura.  Petr.  Palud.  in 
Raynald,  a.  1328,  nr.  30.  The  doctrine  reaches  the  utmost  exalta- 
tion in  Augustinus  Triumphus,  i.  q.  i,  8,  10 — 34,  11.  q.  48 — 75,  but 
goes  yet  further  in  Alvarius  Pelagius,  i.  a.  5 — 7,  11 — 12,  52 — 58: 
potestas  sine  numero,  pondere  et  mensura ;  it  is  exceptionless, 
all-embracing,  the  basis  of  all  power,  sovereign,  boundless  and 
always  immediate.  Durantis,  De  modo  eccl.  cone.  P.  iii.  Turrecre- 
mata,  Summa  de  eccl.  11.  c.  54,  65.  Petrus  a  Monte,  De  primatu, 
f.  144  ff. 

132.  '  Lex  divina  et  lex  naturalis,  articuU  fidei  et  sacramenta  novae 
legis'  were  always  recognized  as  limits.  See  Alex.  III.  in  c.  4,  X.  5,  19 
and  Innocent  III.  in  c.  13,  X.  2,  13.  Joh.  Sar.  Ep.  198,  p.  218. 
Thom.  Aq.  Summa  Theol.  11.  i,  q.  97,  a.  4,  ad  3 ;  Quodhb.  iv.  a.  13. 


Limits  to 
Papal 
Sove- 
reignty. 


Notes. 


145 


Aug.  Triumph,  i.  q.  22,  a.  i  ;  Alv.  Pel.  i.  a.  7  and  46.  Comp. 
Ockham,  Dial.  iii.  tr.  i,  1.  i,  c.  i,  and  tr.  2,  1.  i,  c.  23. 

133.  Ockham  makes  an  elaborate  attack  on  the  doctrine  which  Limited 
teaches  that,  at  any  rate  in  spiritual  affairs,  the  Pope  has  a  plenitude  ^^JJ^^*^^^ 
of  power  in  the  sight  of  Qod  and  man.    This  (he  argues)  would  be  Pope, 
incompatible  with  'evangelical  liberty'  for  it  would  establish  an 
'intolerable  servitude.'    In  all,  or  at  any  rate  all  normal,  cases  the 
Pope's  power  is  potestas  limitata.    Ockham,  Octo  q.  i.  c.  6,  iii. 

c.  4 — 5,  Dial.  III.  tr.  i,  1.  i,  c.  2 — 15,  tr.  2,  1.  r,  c.  23.  Compare 
Joh.  Paris,  c.  3  and  6;  Marsil.  Patav.  11.  c.  22 — 30;  Somn.  Virid. 

I.  c.  156 — 161  ;  Randuf,  De  mod.  un.  c.  5,  10,  23,  28;  Greg.  Heimb. 

II.  p.  1604. 

134.  Ockham,  Octo  q.  i.  c.  15  and  iii.  c.  9  :  obedience  is  due  Condi- 
only  '  in  his  quae  necessaria  sunt  congregationi  fideUum,  salvis  0^"^^^^^^,^ 
iuribus  et  libertatibus  aliorum';  if  the  Pope  transcends  his  sphere  of  due  to  the 
competence,  every  one,  be  he  prelate,  emperor,  king,  prince  or  Law^'of^^^^ 
simple  layman,  is  entitled  and  bound  to  resist,  regard  being  had  to  Necessity, 
time,  place  and  opportunity. — During  the  Great  Schism  the  doctrine 

of  a  right  of  resistance  and  rejection  given  by  Necessity  became 
always  commoner.  See  Matth.  de  Cracovia,  Pierre  du  Mont  de 
St  Michel  and  other  Gallicans  in  Hiibler,  pp.  366,  370 — 2,  377; 
also  ib.  p.  121,  note  8  ;  also  ib.  373  ;  Gerson,  Trilogus,  11.  p.  83  fif. ; 
Theod.  a  Niem,  De  schism,  iii.  c.  20  (resistance,  as  against  a 
bestid)  \  Randuf,  De  mod.  un.  c.  9 — 10;  Ant.  Ros.  11.  c.  23,  27 — 30, 

III.  c.  4 — 6.    Nicholas  of  Cues  (Op.  11.  pp.  825 — 9)  held  to  this 
doctrine  even  after  he  had  fallen  away  from  the  Conciliar  party. 

135.  See  the  following  sections, 

136.  Ockham  refutes  at  large  the  opinion  that  the  lex  divina  vel  Limited 
naturalis  is  the  only  limit  to  imperial  power :  on  the  contrary,  j^^jJe^^^^ 
*  limitata  est  imperatoris  potestas,  ut  quoad  liberos  sibi  subiectos  et  Empire, 
res  eorum  solummodo   ilia  potest  quae  prosunt  ad  communem 
utilitatem.'    Dial.  iii.  tr.  2,  1.  2,  c.  26 — 8:  in  relation  to  persons, 

c.  20;  in  relation  to  things,  c.  21 — 5.    Gerson,  iv.  pp.  598,  601. 
Nic.  Cus.  III.  c.  5.    See  above.  Notes  126 — 30. 

137.  See  above.  Note  16.  Placentinus  de  var.  actionum,  i.  4.  The  State 
Summa  Rolandi,  C.  23,  q.  7,  p.  96.  Addition  to  the  Gloss  on  §  5,  of  Nature. 
Inst.  2,  I,  V.  publicus  [which  addition  teaches  that  communia  are 

those  things  which  by  virtue  of  the  ius  naturale  primaevuin  still 
remain  in  their  original  condition  as  common  to  all].  Joh.  Nider, 
Tract,  de  Contr.  (Tr.  U.  J.  vi.  p.  279),  tr.  v.  K.  Summenhard,  De 
contr.  tr.  i,  q.  8 — 11  [a  German  jurist,  ob.  1502]. — But  Aquinas, 
Summa  Theol.  i.  q.  96,  a.  4  and  Ptolemy  of  Lucca,  De  reg.  pr.  iii. 
M.  10 


146  Political  Theories  of  the  Middle  Age. 


c.  9,  and  iv.  c.  2 — 3,  teach  that  do7ni?iium  politiciiin  would  have  come 
into  existence  even  in  the  State  of  Innocence,  though  not  domijiium 
servile.  [Elsewhere  (D.  G.  R.  iii.  125)  our  author  has  spoken  of  the 
patristic  doctrine  that  lordship  and  property  are  consequences  of  the 
Fall.  He  there  refers  to  various  works  of  Augustine  and  sends  us 
for  other  patristic  utterances  to  Hergenrother,  Katholische  Kirche 
und  christlicher  Staat,  Freib.  1872,  p.  461.] 
Begin-  138.    Already  in  the  course  of  the  Investiture  Quarrel,  Manegold 

of"the  Lautenbach  (above,  Note  130)  asked  :  Nonne  clarum  est,  merito 

Original    illum  a  concessa  dignitate  cadere,  populum  ab  eius  dominio  Hberum 
Contract,    gxistere,  cum  pactum  pro  quo  constitutus  est  constat  illum  prius 
irrupisse?    On  the  anti-papal  side  the  only  answer  was  that  the 
People's  Will  when  once  uttered  became  a  necessitas,  and  that 
therefore  the  grant  of  lordship  was  irrevocable.    See  the  pronounce- 
ment of  the  Anti-Gregorian  cardinals  in  Sudendorf,  Registr.  11.  p.  41. 
Engelbert  of  Volkersdorf  is  the  first  to  declare  in  a  general  way  that 
all  regna  et  pri?icipatus  originated  in  a  pactum  subiectionis  which 
satisfied  a  natural  want  and  instinct :  De  ortu,  c.  2.    Marsil.  Pat. 
I.  c.  8,  12,  15.    Ockham,  Dial.  iii.  tr.  2, 1.  2,  c.  24:  the  ius  humanu?n 
which  introduced  lordship  and  ownership  in  place  of  the  community 
of  goods  existent  under  divine  and  natural  law,  was  a  ius populi  and 
was  transferred  by  the  populus  to  the  Emperor,  along  with  the 
imperium.    Nic.  Cus.  iii.  c.  4.    Aen.  Sylv,  c.  2. 
Right  of  a       139-    Eng.  Volk.,  De  ortu,  c.  10.    Lup.  Bebenb.  c.  5  and  15. 
People  to  Ockham,  Octo  q.  11.  c.  4—5,  v.  c.  6,  viii.  c.  3.    Baldus,  1.  5,  Dig. 
Superior.  "r.  5  and  8 ;  1.  2,  Cod.  6,  3,  nr.  3.    Paul.  Castr.  1.  5,  Dig.  i,  i, 

lect.  I,  nr.  5,  and  lect.  2,  nr.  17 — 18. 
The  140-    Joh.  Paris,  c.  11  and  16:   populo  faciente  et  Deo  in- 

Peopleas   spirante.    Mars.  Pat.  i.  c.  o:  where  men  institute  a  king,  God  is 

instru-         ^  ^  1  T^-  1  .  . 

ments  of    causa  remota.    Ockham,  Dial.  iii.  tr.  2,  1.  i,  c.  27  :  mipermm  a  Deo, 

et  tamen  per  homines,  scil.  Romanos.    Ant.  Ros.  i.  c.  56  :  imperium 

immediate  a  Deo,  per  medium  tamen  populi  Romani,  qui  tanquam 

Dei  minister  et  instrumentum  eius  iurisdictionem  omnem  in  ipsum 

transtulit. — Somewhat  divergently  Almain,  De  auct.  eccl.  c.  i  (Gers. 

Op.  II.  pp.  978  and  1014) :  God  gives  the  power  to  the  communitas 

in  order  that  this  power  may  be  transferred  to  the  Ruler. 

God  and         141-    Nicol.  Cus.  II.  1 9,  III.  praef.  and  c.  4,  argues  that  all 

the  People  power  in  Church  and  State  comes  both  from  God  and  from  Man,  for 

Source  of        voluntary  subjection  of  men  ^ives  the  material  power  and  God 

Power.      grants  the  spiritual  force.    Is  it  not  divine,  and  not  merely  human, 

when  an  assembled  multitude  decides  as  though  it  were  one  heart 

and  one  soul  (11.  c.  5  and  15)? 


Notes. 


142.  [The  famous  text  in  question  is  1.  i,  Dig.  i,  4  and  Inst.  The  Lex 
I,  2,  6  :  Quod  principi  placuit  legis  habet  vigorem  :  utpote  cum  lege  ^^S^^- 
regia,  quae  de  imperio  eius  lata  est,  populus  ei  et  in  eum  omne  suum 
imperium  et  potestatem  conferat]   Gloss  on  1.  9,  Dig.  1,3;  1.  i,  Dig. 

I,  4;  1.  un.  Dig.  I,  II  ;  1.  2,  Cod.  8,  53;  1.  11,  Cod.  i,  17  v.  solus 
imperator;  and  on  i.  Feud.  26.  Jac.  Aren.  Inst,  de  act.  nr.  5,  p.  277. 
Cinus,  1.  4,  Cod.  2.  54.  Baldus,  1.  i,  Cod.  i,  i,  nr.  i — 12.  Innoc. 
c.  I,  X.  I,  7,  nr.  I — 2  :  papa  habet  imperium  a  Deo,  imperator  a 
populo.  Dante,  iii.  c.  13 — 4.  Lup.  Bebenb.  c.  5,  p.  355  :  ohm 
tenuit  monarchiam  imperii  populus  urbis  Romanae ;  postea  transtulit 
in  ipsum  imperatorem.  Ockham,  Octo  q.  11.  c.  4 — 5  ;  Dial.  iii.  tr.  2, 
1.  I,  c.  27 — 28.    Aen.  Sylv.  c.  8.    Ant.  Ros.  i.  c.  32  and  36. 

143.  Thus  Engelbert,  Marsilius,  Ockham  and  yEneas  Sylvius,  Voluntary 
as  in  Note  138.    In  particular,  Nic.  Cus.  11.  c.  12  :  the  binding  force  ^^u^jection 
of  all  laws  rests   upon  '  concordantia  subiectionalis   eorum  qui  Ground  of 
ligantur';   11.  c.   13:   all  power  flows   from   the  free  '  subiectio 
inferiorum ' ;  iii.  c.  4 :  it  arises  '  per  viam  voluntarie  subiectionis  et 
consensus';  11.  c.  8  and  10. 

144.  See  above.  Note  54. 

145.  Ockham,  Dial.  iii.  tr.  2,  1.  i,  c.  27,  vouching  Gloss  on  c.  6, 
X.  I,  2.  Ant.  Ros.  V.  c.  2  (true  even  for  the  Babylonian  empire: 
with  voucher  of  Dig.  3,  4,  Innocentius  and  Bartolus). 

146.  See  the  letter  of  the  Senatus  Populusque  Romanus  to  King  Rights 
Conrad  in  Jaffe,  Monum.  Corbeiens.  p.  332  (also  Otto  Fris.  Gesta  ^^J^^^^^.^ 
Frid.  I.  c.  28):  the  Kaiser  has  the  'imperium  a  Deo,'  but  *  vigore  of  Rome 
senatus  et  populi  Romani ' :  he  ought  to  dwell  '  in  urbe  quae  caput  ^J^f 
mundi  est.'    Also  Otto  Fris.  1.  c.  11.  c.  21;  letter  of  Wezel,  ann.  vacant. 

1 152,  in  Jaffe,  1.  c.  p.  542  :  set  cum  imperium  et  omnis  reipublicae 
dignitas  sit  Romanorum  et  dum  imperator  sit  Romanorum  non 
Romani  imperatoris,...quae  lex,  quae  ratio  senatum  populumque 
prohibet  creare  imperatorem? — Even  the  Hohenstaufen,  however 
decisively  they  may  assert  their  divine  right  as  against  such  claims 
as  these  (cf  ep.  an.  1 152  in  Jaffe,  1.  c.  p.  449,  and  Otto  Fris.  in.  c.  16, 
and  IV.  c.  3),  treat  Rome  as  the  capital  town  of  the  Empire  and  the 
Roman  townsfolk  as  in  a  special  sense  the  imperial  folk  (cf.  Petr.  de 
Vineis,  ep.  i.  c.  7,  iii.  c.  i,  18,  72). 

147.  Lup.  Bebenb.  c.  12  and  17.    Similarly  Ockham,  Dial.  iii.  The 

tr.  2,  1.  I,  c.  30:  'imperium  Rom.'  and  'dominium  temporalium...  ^^^^^^^^ 
principalissime  spectat  ad  totam  communitatem  universalium  morta-  the  Roman 
lium.'    See  also  Dante,  iii.  c.  16.  P^°P^^- 

148.  Joh.  Paris,  c.  16  :  acclamante  populo,  cuius  est  se  subicere  The 
cuivultsine  alterius  praeiudicio.   Marsil.  Pat.  Def.  pac.  11.  c.  30:  the  ^^op^^'^ 

10 — 2 


148  Political  Theories  of  the  Middle  Age. 


Part  in  the  Pope  acted,  if  at  all,  as  the  delegate  of  the  legislator  Romanus  [i.e. 
tion^oAhe  Ionian  people].  See  also  the  changes  made  by  Marsilius  in 
Empire.  Landulf's  De  transl.  imp.  c.  8,  9,  10,  12.  Ockham,  Octo  q.  11.  c.  9, 
IV.  c.  5  and  8  :  auctoritate  populi  Romani,  with  the  Pope  as  a  part  or 
mandatory  or  counsellor;  Dial.  iii.  tr.  2,  1.  i,  c.  20  :  the  Pope  acted 
auctoritate  et  vice  Romanorum...transferentibus  consensit.  Theod.  a 
Niem,  pp.  788 — 792.  Aen.  Sylv.  c.  9:  concurrente  summi  pontificis 
consensu. 

The  149.    Lup.  Bebenb.  c.  12,  p.  385;  comp.  c.  i — 4  and  8.  Ockham, 

Citizens     Dial.  III.  tr.  2,  1.  I,  c.  29 — 30,  raises  other  doubts.    Could  the  then 
and  the     populus  Romanus  surrender  the  imperium  to  the  prejudice  of  the 
tion"^^^'    populus  sequens}    Could  the  whole  universitas  mortaliiim  make  the 
transfer  invitis  Romanis  ?    To  the  last  question  the  answer  is  Yes, 
if  there  were  culpa  on  the  part  of  the  Romans,  or  other  reasonable 
cause. 

Right  of         150.    Lup.  Bebenb.  c.  5.    Ockham,  Octo  q.  11.  c.  14,  and  Dial. 

the  People  ^   j   ^   ^   22  :  only  by  authorization  of  the  Romani  or  the 

during  a  '  ... 

Vacancy    Electors  can  the  Pope  claim  any  right  in  this  matter.    Ant.  Ros.  i. 

Empire  ^"  '  populus  Ro77ianus  demises  the  imperial  power  as  an 
officium  publicu77i;  on  the  Kaiser's  death  this  reverts  to  the  populus. 

The  Right       151.    See  the  citations  in  Note  138.    Mars.  Pat.  i.  c.  9  and  15. 

a^RuleT^  Lup.  Bebenb.  c.  5:  secundum  ius  gentium... quilibet  populus  potest 
sibi  regem  eligere;  c.  15:  election  or  appointment  by  the  Kaiser 
is,  according  to  the  common  law,  the  only  title  whereby  a  pri7icipatus 
or  reg7iu77i  can  be  acquired.  Ockham,  Dial.  iii.  tr.  2,  1.  3,  c.  5 — 6  : 
if  once  a  departure  has  been  made  from  the  077inia  comtTiunia  of  pure 
Natural  law,  we  have  as  a  principle  of  the  now  modified  Natural  Law 
*quod  omnes  quibus  est  praeficiendus  ahquis  habeant  ius  eligendi 
praeficiendum,  nisi  cedant  iuri  suo  vel  superior  eis  ordinet  contra- 
rium.'  Nic.  Cus.  iii.  c.  4 :  populus  Romanus  habet  potestatem 
eligendi  inperatorem  per  ipsum  ius  divinum  et  naturale ;  for,  accord- 
ing to  God's  very  own  will,  all  lordship,  and  in  particular  that  of 
Kings  and  Kaisers,  arises  'per  viam  voluntariae  subiectionis  et  con- 
sensus.'   Ant.  Ros.  I.  c.  69. 

Consen-  152.    Mars.  Pat.  i.  c.  9.    Eng.  Volk.  De  ortu,  c.  10.  Lup. 

of  H?re?^  Bebenb.  c.  15,  p.  398.    Ockham,  Octo  q.  v.  c.  6.    K.  Summenhard, 

ditary       De  contr.  tr.  I.  q.  11  :  an  hereditary  kingship  arises  if  those  who  first 

Kingship,  consented  gave  consent  pro  se  et  suis,  an  elective  kingship  if  they  only 
consented  pro  se,  so  that  'eo  sublato,  Hbere  possunt  se  alteri  sub- 
mittere  quem  elegerint.'  Custom,  ordinance  proceeding  from  a  higher 
power,  and  conquest  are  mentioned  as  other  titles  to  hereditary  rule. 
153.    Thom.  Aq.  Comm.  ad  Polit.  pp.  495  and  501.   Aegid.  Col. 


Notes. 


149 


III.  2,  c.        Mars.  Pat.  i.  c.  16.    Bart.  De  reg.  civ.  nr.  23.    Nic.  S^^.^^^l^- 

'       ^  .  Rulership 

Cus.  III.  praef.    See  also  Miles  in  Somn.  Virid.  i.  c.  187.  is  prefer- 

154.  Otto  Fris.  Gesta,  II.  c.  i.    Lup.  Bebenb.  c.  5.    Ockham,  ^^1^- 
Octo  q.  IV.  c.  5  and  9,  viii.  c.  3.    Baldus,  1.  5,  Dig.  i.  i,  nr.  11  — 15.  Empire 
Nic.  Cus.  III.  c.   4.    According  to  Lupoid,  the  exercitus,  which  Elective. 
'  repraesentabat  totum  populum  Romanorum  imperio  subiectum,' 

used  to  make  the  election  ;  afterwards  it  was  made  by  the  People 
itself ;  then  by  the  Emperor  who  chose  a  successor ;  finally  by  the 
Prince  Electors. 

155.  Mars.  Pat.  11.  26  (concessio  popuH  is  the  basis)  and  iii.  Theory 
concl.  9  and  10.    Lup.  Bebenb.  c.  5  and  12  :  when  the  Karolings  pj-jnce 
had  died  out,  the  princes  and  nobles  of  the  Franks,  Alamans,  Bava-  Electors, 
rians  and  Saxons  'who  represented  the  whole  Folk  of  Germany' 

made  the  choice ;  then  Otto  IIL  '  by  the  express  or  at  any  rate  the 
tacit  consent '  of  the  princes  and  people  established  the  Kurfiirsten 
(Prince  Electors) ;  and  this  was  legitimate,  for  by  the  ius  gentium 
every  universitas  may  choose  a  king,  and,  in  accordance  with  a 
general  custom,  may  also  confer  upon  him  imperial  rights,  and  more- 
over may  delegate  for  ever  to  committees  the  right  to  make  equally 
valid  elections.  Ockham,  Octo  q.  viii.  c.  3.  Nic.  Cus.  iii.  c.  4  :  the 
Electors  were  instituted  in  the  time  of  Henry  IL  by  the  common 
consent  of  all  the  Germans  and  of  all  others  who  were  subject  to  the 
Empire,  and  therefore  '  radicalem  vim  habent  ab  ipso  omnium  con- 
sensu qui  sibi  naturali  iure  imperatorem  constituere  poterant.'  Ant. 
Ros.  I.  c.  48  :  the  '  collegium  universale  fidelium,  et  sic  populus 
Romanus,'  instituted  the  Electors. 

156.  Ockham,  Dial.  iii.  tr.  2,  1.  i,  c.  30  :  what  the  People  has  The  Pope 
de  facto  conveyed  to  the  Pope  is  knowable  only  by  one  who  has  seen  p^p^^j^^. 
all  the  papal  charters,  registers  and  authentic  documents ;  but  in  Delegate, 
principle  the  People  might  have  transferred  to  the  Pope  power  to 
constitute  the  Electoral  College  or  even  directly  to  make  the  election. 

Nic.  Cus.  III.  c.  4  holds  that  it  was  merely  as  a  subject  of  the 
Empire  (for  in  temporals  the  Church  is  subject)  that  the  Pope  gave 
his  consent,  whereas  the  virtue  {vigor)  of  the  act  flowed  not  'ex  suo 
sed  ex  communi  omnium  et  ipsius  et  aHorum  consensu.' — On  the 
other  hand,  according  to  Lupoid  v.  Bebenburg,  c.  12,  an  authoriza- 
tion by  the  Church  was  requisite  in  order  that  the  choice  made  by 
the  Prince  Electors  might  give  a  claim  to  imperial  coronation  and  to 
imperial  rights  outside  the  realm  of  Charles  the  Great. 

157.  Mars.  Pat.  11.  c.  26.    Ockham,  Octo  q.  viii.  c.  i — 8,  and  Election, 

IV.  c.  8—9;  Dial.  III.  tr.  2,  1.  2,  c.  29.    Nic.  Cus.  iii.  c.  4. — So  also  not  Coro- 

,  nation, 
Bebenburg,  c.  5 — 6,  but  once  more  with  an  exception  of  imperial  confers  the 


1 50  Political  Theories  of  the  Middle  Age, 


Imperial    rights  beyond  the  Hmits  of  the  '  immediate '  Reich.    Ockham  justly 
Rights.      urges  that  Bebenburg's  own  argument  requires  that  the  Electing 
Princes  should  represent  the  World-Folk,  and  not  merely  the  folk 
of  Charles  the  Great's  lands. 
LexRegia:       1 58.    Accursius  in  Gl.  upon  1.  9,  Dig.  i,  3,  v.  non  ambigitur, 
vocabk     decides  in  favour  of  this  view,  while  the  Gl.  upon  1.  11,  Cod.  i,  14, 
Convey-     V.  solus  imperator  mentions  it  but  does  not  decide.    So  also  Gl.  upon 
ance.        ^  Feud.  26,  V.  ^z;^ (imperator  maior  populo).  Hostiensis, 
De  const.    Bartolus,  1.  11,  Cod.  i,  14,  nr.  3 — 4:  omnis  potestas  est 
abdicata  ab  eis.  Baldus,  1.  8,  Dig.  i,  3,  nr.  5 — 11,  says  that  the popu- 
lus  Ro77ia7ius  cannot  depose  the  Emperor  and  is  not  imperatori similis; 
the  translatio  was  an  alie?iatio  plena  iure ;  otherwise  the  Kaiser  would 
be,  not  dominus^  but  commis sarins  populi.    So  Baldus  in  i.  Feud.  26, 
nr.  15  and  11.  Feud.  53  §  i  (princeps  maior  populo);  1.  8,  Dig.  i,  14, 
nr.  I — 3,  and  1.  11,  eod.  nr.  6:  the  populus  can  no  longer  make 
laws.    Angel.  Aret.  §  6,  i.  I,  2,  nr.  5 — 6.    Joh.  de  Platea,  Inst,  i, 
2,  nr.  51.    Marcus,  Dec.  i.  q.  187. 
LexRegia:       159.    See  the  counter  opinions  in  the  Glosses  cited  in  the  last 
caHeDele  Dig-       R.  D.  v.  littora :  the  protectio  of  the  res 

gation.  com7nunes  omnium  is  ascribed  to  the  Roman  people :  Baldus  substi- 
tutes Caesaris  for  pop.  Rom.  Also  Cinus,  1.  12,  Cod.  i,  14:  but  he 
confesses  that  at  the  present  day  statutes  made  by  the  Roman  people 
would  find  little  observance  outside  the  walls  of  Rome.  Ockham, 
Octo  q.  IV.  c.  8.  Christof.  Parous  §  6,  Inst,  i,  2,  nr.  4  (with  elaborate 
proof).  Zabar.  c.  34  §  verum,  X.  i,  6,  nr.  8.  Paul.  Castr.  1.  8,  Dig. 
I,  3,  nr.  4 — 6,  and  1.  i,  Dig.  i,  4,  nr.  4:  he  holds  that  there  was  a 
concessio  of  the  usus.,  not  a  translatio  of  the  substantia^  but  since 
Christ's  advent  the  Church  has  taken  the  place  of  the  People. 
Absolute  1 60.  See  e.g.  the  speech  of  the  Abp  of  Milan  to  Frederick  I.  in  Ott. 
andThe^^  Fris.  IV.  c.  4,  and  the  letter  of  Frederick  11.  in  Pet.  de  Vin.  ep.  v.  c.  135. 

Will  of  the       161.    Oldradus  and,  following  him,  Baldus,  Prooem.  Feud.  nr. 

People 

Nullity  of  26  §  4  in  generali,  nr.  34.    Picus  a  Monte  Pico, 

Monarch's  I.  Feud.  7,  nr.  7.  Decius,  Cons.  564,  nr.  9 — 10.  Franc.  Curt.  jun. 
rtiey  tend  ^74'       ^7* — Therefore  to  support  the  Donation  of  Constan- 

to  impair   tine,  an  approval  by  Senate  and  People  was  supposed.  Baldus, 
men^af^^*  P^'^^^^^"'-  ^ig-  nr.  44 — 45,  and  II.  Feud.  26  §  4,  nr.  3  ;  Aug.  Trium- 
Rights.      phus,  11.  q.  43,  a.  3;  Ant.  Rosellus,  i.  c.  69;  Curtius,  1.  c.  nr.  18. 
Nullity  162.    Lup.  Bebenb.  c.  8,  p.  367,  and  c.  12,  p.  381,  but  esp.  c.  14, 

su^ecting  PP-  395 — 7  '  ^^^^e  these  concessions  and  confessions  were  made  without 
theEmpire  the  consent  of  the  Prince  Electors  and  the  People  of  the  realm  and 
Church      empire,  the  said  Princes  and  other  representatives  of  the  People  can 
contradict  them,  and  this  contradiction  is  to  be  received  ;  so  the 


Notes. 


subditi  may  always  raise  objection  if  a  dominus  would  subject  himself 
and  his  land  to  another  dominus;  for  according  to  the  ms  ge7itium, 
civile  et  canonicuvi  whatever  would  prejudice  a  community  '  debet  ab 
omnibus  approbari.'  Similarly,  Ockham,  Dial.  iii.  tr.  2,  1.  i,  c.  30 : 
a  division  or  diminution  of  the  Empire  would  be  valid  '  non  absque 
consensu  expresso  vel  tacito  totius  universitatis  mortalium.' 

163.  Seethe  Commentaries  on  1.  8,  Cod.  i,  14;  also  Baldus, 

II.  Feud.  26  §  I,  nr.  13. 

164.  See  e.g.  Pet.  de  Vin.  ep.  i.  c.  3.  p.  105.    Lup.  Bebenb.  The  Right 
c.  17,  p.  406 — 7  :  even  were  rex  maior  populo^  the  people  must  have  ^^i^ulerTn 
a  right  to  depose  him  in  a  case  of  necessity ;  '  necessitas  enim  a  case  of 
legem  non  habet.'    Ockham,  Octo  q.  11.  c.  7,  vi.  c.  2,  iii.  c.  3  ;  the  ^^^^^sity. 
Kaiser,  albeit  ius  a  popiilo  habet,  stands  above  the  People,  the  King 

above  the  Realm,  the  General  of  an  Order  above  all  the  friars  :  still 
in  case  of  necessity  the  community  may  depose  him.    Anton.  Ros. 

III.  c.  16  :  although  the  Kaiser  stands  as  caput  above  the  Assembly  of 
the  Reich  and  is  judge  in  his  own  cause,  an  exception  must  be 
admitted  if  he  is  accused  before  that  Assembly  as  'tyrannus  et 
scandalizans  universale  bonum  imperii  saecularis.'  Comp.  ib.  c.  21 
and  22,  and  above.  Note  130. — On  the  other  hand,  already  in  the 
time  of  Henry  IV.  the  Anti-Gregorian  cardinals  opine  that,  though 
the  people  can  make  a  king,  the  will  of  the  people,  when  once  it  is 
uttered,  becomes  a  necessitas  :  see  Sudendorf,  Registr.  11.  41.  So 
also  Baldus  (Note  158);  but  comp.  his  Cons.  v.  c.  325 — 6. 

165.  Thomas  of  Aquino  attributes  sovereignty  sometimes  to  The  Mixed 
the  People,  sometimes  to  the  Prince,  regard  being  had  to  the  different  ^^lo^ 
constitutions  of  different  States.    Summa  Theol.  11.  i,  q.  90,  a.  3  : 
ordinare  aliquid  in  bonum  commune  est  vel  totius  multitudinis  vel 
alicuius  gerentis  vicem  totius  multitudinis ;  et  ideo  condere  legem 

vel  pertinet  ad  totam  multitudinem,  vel  pertinet  ad  personam  publi- 
cam,  quae  totius  multitudinis  curam  habet.  So  also,  q.  97,  a.  3.  In 
this  matter  later  writers  follow  him  :  e.g.  Joh.  Friburg.  11.  t.  5,  q.  209, 
and  K.  Summenhard,  q.  11  :  potestas  politica  exists  '  duplici  mode, 
uno  modo  in  uno  rege,  alio  in  una  communitate.'  But  as  to  the  best 
constitution,  Aquinas  declares  in  favour  of  the  mixed  constitution 
which  (so  it  is  imagined)  prevailed  among  the  Jews.  Summa  Theol. 
II.  I,  q.  95,  a.  4,  and  q.  105,  a.  i  :  '  Unde  optima  ordinatio  princi- 
pum  est  in  aliqua  civitate  vel  regno  in  quo  unus  praeficitur  secundum 
virtutem  qui  omnibus  praesit ;  et  sub  ipso  sunt  aliqui  participantes 
secundum  virtutem ;  et  tamen  talis  principatus  ad  omnes  pertinet, 
tum  quia  ex  omnibus  eligi  possunt,  turn  quia  etiam  ab  omnibus 
eliguntur  :  talis  enim  est  omnis  politia  be?ie  coimnixta  ex  regno  in 


152  Political  Theories  of  the  Middle  Age. 


quantum  unus  praeest,  ex  aristocratia  in  quantum  multi  principantur 
secundum  virtutem,  et  ex  deinocratia^  id  est,  potestate  populi,  in 
quantum  ex  popularibus  possunt  eligi  principes  et  ad  populum 
pertinet  electio  principum.'  In  all  cases  he  demands  that  Monarchy 
be  subjected  to  limitations  so  that  it  may  not  degenerate  into 
Tyranny:  De  reg.  princ.  i.  c.  6.  John  of  Paris,  c.  20,  p.  202,  prefers 
to  a  pure  Monarchy  one  mixed  with  Aristocracy  and  Democracy. 
So  d'Ailly,  De  pot.  eccl.  11.  c.  i,  and  Gerson,  De  pot.  eccl.  cons.  13. 
Eng.  of  Volkersdorf  also  (i.  c.  14 — 16)  portrays  the  advantages  of 
mixed  constitutions.  Jason,  1.  5,  Cod.  i,  2,  lect.  2,  nr.  10 — 13, 
declares  it  to  be  a  general  maxim  in  Church  and  State,  that,  if  there 
be  ardua  negotia  concerned,  the  Head  is  bound  to  obtain  the  consent 
of  a  conciliar  assembly.  Almain,  Comm.  ad  Occam,  q.  i,  c.  5  and 
15,  holds  it  to  be  compatible  with  the  nature  of  a  Monarchy  that  in 
State  and  Church  respectively  the  congregatio  nobilium  or  the  Council 
is  entitled  to  impose  limits  on  the  regal  or  papal  power  and  to  judge 
and  depose  the  king  or,  as  the  case  may  be,  the  pope ;  but  then  it  is 
true  that  he  elsewhere  (Tract,  de  auct.  eccl.  c.  i,  Gerson,  Op.  11. 
p.  977  ff.)  declares  that  the  Prince  is  above  all  individuals,  but  not 
above  the  community.  John  Mair,  Disput.  a.  15 18  (Gerson,  11. 
p.  1 131  if.)  supposes  two  highest  powers,  that  of  the  folk  being  the 
more  unlimited. 

166.    See  above,   Note   159.    Lup.  Bebenb.  c.   12  and  17. 
Ockham,  Octo  q.  iv.  8. 
Justice  to        167.    Mars.  Pat.  i.  c.  15  and    18;  11.   c.  26  and  30.  Lup. 
upo^n^the    ^^t)enb.  c.  17,  p.  406.    Ockham,  Octo  q.  11.  c.  8  (correctio  impera- 
Ruler.       toris  spectat  ad  Romanos).    Miles  in  Somn.  Virid.  i.  141  :  if  a  King 
imposes  unjust  taxes,  denies  justice,  fails  to  defend  the  country,  or 
otherwise  neglects  his  duty,  the  People  may  depose  him  and  choose 
another  Ruler,  and  so  the  People  of  a  part  of  the  realm,  if  this  part 
only  has  suffered  neglect,  may  appoint  a  separate  Ruler.  Joh. 
Wiclif,  art.   17  :    populares   possunt  ad  suum  arbitrium  dominos 
delinquentes  corrigere.    Nicol.  Cus.  iii.  c.  4. — Already  in  the  course 
of  the  Investiture  Quarrel,  Manegold  of  Lautenbach  deduced  the 
right  of  deposition  in  case  of  breach  of  contract  by  the  Ruler. — 
Innoc.  c.  I,  X.  i,  10,  nr.  i — 2  concedes  a  right  of  deposition  only  in 
the  case  of  elective  kings. 
TheDepo-       168.  Especially  in  relation  to  the  deposition  of  the  last  Merovings 
Kings.°^    and  the  exaltation  of  Pipin,  it  is  asserted  at  length  that  '  non  deposuit 
papa,  sed  deponendum  consuluit  et  depositioni  consensit,'  '  non 
substituit  sed  substituendum  consuluit  et  substituentibus  consensit,' 
*a  iuramento  absolvit,  i.e.,  absolutos  declaravit';  and  reference  is 


Notes. 


153 


made  to  Huguccio  and  Glos.  ord.  on  c.  alius,  C.  15,  q.  6.  Joh.  Paris, 
c.  15.  Mars.  Pat.  De  transl.  c.  6.  Lup.  Bebenb.  c.  12,  pp.  386 — 9: 
the  Pope  merely  declared  a  dubium  iuris,  the  Franks  deposed  and 
instituted.  Ockham,  Octo  q.  11.  c.  8 ;  viii.  c.  i  and  5  ;  Dial.  iii.  tr.  2, 
1.  I,  c.  18:  so  too  Innocents  III.  and  IV.  acted  auctoritate  Roman- 
orum,  unless  indeed  their  doings  were  usurpatory.  Somn.  Virid. 
I.  c.  72 — 73.  Quaestio  in  utramque  p.  106,  ad  15 — 16.  Nic.  Cus.  iii. 
c.  4  :  the  Pope  acted  as  a  member  of  the  universitas. 

169.  Lup.  Bebenb.  c.  12,  p.  385,  and  c.  17,  p.  406. 

170.  Marsil.  Pat.  i.  c.  7 — 8,  12 — 13,  15,  t8,  ii.  c.  30,  iii.  concl.  6. 

171.  Nicol.  Cus.  III.  c.  4  and  41,  and  11.  c.  12 — 13.    The  pro- The 
posals  made  by  Cusanus  for  the  reformation  of  the  Empire  are  ^j°{^^Q/^g°^ 
connected  with  these  theories,  and  in  a  very  remarkable  fashion  blend  of  Cues, 
the  forms  of  the  medieval  Land-Peace-Associations  with  the  ideas  of 
Nature  Right,  iii.  c.  25 — 40.    The  Emperor  continues  to  be  the 
monarchical  Head  of  the  Empire  and  is  to  take  the  initiative  (c.  32). 

A  very  complicated  method  is  proposed  for  his  election  (c.  36 — 37). 
The  power  of  making  laws  for  the  Empire  is  wielded  by  an  annually 
assembled  Imperial  Diet  {Reichstag)  which  consists  of  Prince-Electors, 
Judges,  Councillors  and  Deputies  of  Towns,  and  represents  the 
whole  People  (c.  35).  Then  below  this  stand  annual  Provincial 
Assemblies  of  the  three  Estates  (Clergy,  Nobles  and  People)  which 
regulate  the  special  affairs  of  the  provinces,  and  depute  standing 
committees  (provincial  courts)  with  a  strong  executive  power  (c.  33). 
Further  and  detailed  reforms  of  the  imperial  army  (c.  39),  of  the 
finance  and  justice  of  the  Empire,  of  the  laws  concerning  the  Land 
Peace  (c.  34),  of  ecclesiastical  privileges  (c.  40)  and  so  forth  are 
proposed.  As  in  the  Empire,  so  generally  in  all  territories  the  kings 
and  princes  are  to  have  by  their  sides  an  aristocratic  consilium  quoti- 
dianum  and  an  electing,  legislating  and  deciding  consilium  generale 
(c.  12), — Analogous  reforms  in  the  Church  are  proposed;  11.  c.  22 — 33. 

172.  See  in  particular  the  transactions  of  the  French  Estates  of  Popular 
1484,  and  on  them  Bezold,  Hist.  Zeitschr.  vol.  36  (1876)  361  ff.,  and  fe^g^ty  in 
Baudrillart,  Bodin  et  son  temps,  p.  10 ;  the  remarks  of  Philippe  de  France. 
Comynes  in  Baudrillart,  p.  11  ff.  ;  the  doctrine  of  Jacob.  Almain, 
Expos,  ad  Occam,  q.  i.  c.  5  and  15;  Tract,  de  auctor.  eccl.  c.  i 
(Gerson,  Op.  11.  p.  977  ff.) ;  De  dominio  naturali  etc.  (ib.  964). 

173.  See  the  passages  from  the  Canonists  collected  by  v.  Schulte,  J^^P^^  ^ 
Die  Stellung  der  Koncilien,  p.  253  ff.    Thom.  Aq.  Opusc.  cont.  err.  General^ 
Graec.  11.  c.  32 — 38.    Innoc.  c.  23,  X.  de  V.  S.  nr.  3.    Dur.  Spec.  Councils. 
I.  I  de  leg.  §  5,  nr.  10.    Aegid.  Rom.  De  pot.  eccl.  i.  c.  2.  Aug. 
Triumph,  i.  q.  6,  a.  6.    Alv.  Pel.  i.  a.  6  (printed  in  Hiibler,  Konst. 


154  Political  Theories  of  the  Middle  Age. 


Papal 
Elections  : 
Repre- 
sentative 
Character 
of  the 
Cardinals. 


Deposition 
of  an 
heretical 
Pope. 


The 

heretical 
Pope  is 
deposed 
ipso  facto. 


In  Matters 
of  Faith 
the  Pope 
is  below 


Ref.  p.  361)  and  17.  Brief  of  Pius  II.  and  Reply  of  Laelius  in  Gold. 
II.  p.  1591  and  1595.  Turrecremata,  Summa  de  eccl.  11.  c.  54  and 
65;  III.  c.  28,  32,  44,  47,  51,  55.  Petrus  de  Monte  in  Tr.  U.  J. 
XIII.  I,  p.  144  ff. 

174.  If  Aug.  Triumphus,  i.  q.  3,  a.  7 — 9,  says  that  the  electing 
college  is  not  viaius  papa^  since  it  is  merely  God's  instrument  for  the 
designatio  personae,  makes  the  election  papae  aiictoritate,  and  can 
confer  no  authority  upon  the  pope,  still  in  default  of  the  college  he 
attributes  the  right  of  election  to  the  Concilium  Ge?ierak,  and  con- 
nects this  attribution  with  the  doctrine  that,  during  the  vacancy  of 
the  see,  the  collegium  universalis  ecclesiae  represents  the  Church,  may 
assemble  of  its  own  motion  or  at  the  emperor's  call,  and,  to  this 
extent,  possesses  a  'potential  superiority  {?naioritas pote?itialisy 

may  be  contrasted  with  the  'actual  superiority  {maioritas  actualisy 
of  the  pope.  See  i.  q.  3,  a.  2,  q.  4,  a.  i — 8,  q.  6,  a.  6.  However, 
during  the  vacancy  the  properly  monarchical  power,  so  far  as  its 
substance  is  concerned,  lives  on  merely  in  Christ,  and,  so  far  as  its 
use  is  concerned,  lies  dormant,  for  the  Cardinals — here  a  departure 
from  older  theory — can  at  the  most  exercise  the  papal  jurisdiction  'in 
minimis  et  quibusdam.'   See  also  Alv.  Pel.  i.  a.  20,  Gl.  on  CI.  2  de  el. 

1,  3,  V.  7ion  consonam;  Hinschius,  Kirchenrecht,  §  39. 

175.  See  V.  Schulte,  Die  Stellung  der  Koncilien,  pp.  192 — 4 
and  p.  253  ff. 

176.  See  c.  13,  C.  2,  q.  7,  and  c.  6,  D.  40;  also  in  v.  Schulte, 
op.  cit.,  the  opinions  of  Gratian,  Rufinus,  Stephanus  Tornacensis, 
Simon  de  Bisignano,  Joh.  Faventinus,  Summa  Coloniensis,  Summa 
Parisiensis,  Summa  Lipsiensis,  Huguccio,  Bern.  Papiensis,  Joh.  Teu- 
tonicus,  Archidiaconus,  Turrecremata,  Gofifr.  Tranensis,  Hostiensis, 
Joh.  Andreae,  Joh.  de  Imola,  Joh.  de  Anania.  Moreover,  Gl.  ord. 
on  c.  9,  C.  24,  q.  I,  V.  novitatibus ;  Innoc.  IV.  on  c.  23,  X.  de  verb, 
sig.  5,  40,  nr.  2 — 3  ;  Host,  de  accus.  nr.  7  ;  Joh.  de  Anan.  c.  29, 
X.  3,  5,  nr.  9  ff. ;  Petrus  a  Monte,  f.  148  tf. 

177.  This  is  suggested  already  by  Joh.Teutonicus  (1.  c.  nr.  310, 
p.  265),  and  is  urged  in  particular  by  Aug.  Triumphus,  i.  q.  5.  a.  i, 

2,  6  and  q.  6,  a.  6  (see  also  q.  i,  a.  i,  3,  q.  5,  a.  3 — 4,  q.  7,  a.  i — 4, 
q.  6,  II.  q.  6  and  11.  45 — 46),  and  Alvarius  Pelagius,  i.  a.  4 — 6  and  34, 
II.  a.  10.  Also  by  the  Clerk  in  the  Somnium  Virid.  11.  c.  161. 
Ockham  discusses  the  matter  at  length  :  Octo  q.  iii.  c.  8,  viii.  c. 
5—6,  Dial.  I.  6,  c.  66—82. 

178.  Already  Huguccio  (v.  Schulte,  p.  261)  is  of  opinion  that 
the  heretical  pope  is  'minor  quolibet  catholico.'  See  the  statement 
of  this  view  in  Ockham,  Dial.  i.  5,  c.  27,  and  i.  6,  c.  12 — 13,  57,  64: 


Notes. 


155 


in  matters  of  faith  the  Council  is  '  maius  papa '  because  it  '  tenet  the 
vicem  ecclesiae   universaHs.'      Michael  de  Cesena,  ep.  a.  1331 
(Goldast,  II.  p.  1237):  in  his  quae  ad  fidem  catholicam  pertinent 
papa  subest  concilio.    Henr.  de  Langenstein,  Cons.  pac.  a.  1381, 
c.  13  and  15  in  Gerson,  11.  p.  824,  832. 

179.  Thus  already  Huguccio  and  others;  for  crimina  nofon'a 'Deposition 
comp.  Ockham,  Octo  q.  i.  c.  17,  11.  c.  7,  iii.  c.  8,  viii.  c.  5 — 8 ;  ^^j^^^. 
Dial.  I.  6,  c.  86.    Letter  of  the  University  of  Paris,  an.   1394  matical  or 
(Schwab,  pp.   131— 2,  Hiibler,  p.  362);  for  schism,  Matth.  de  p^^g^^^^ 
Cracovia  (Hiibler,  p.  366 — 7).    Pierre  Plaoul,  a.  1398  (Schwab, 

p.  147).    Zabar.,  De  schism,  p.  697. 

180.  See  above,  Note  134.    Henr.  de  Langenstein,  1.  c,  c.  15.  Rejection 
Simon  Cramaud,  Pierre  Plaoul  and  other  Galileans  in  Schwab,  146  ff.  case'of 
and  Hiibler,  368  ff.    Opinion  of  the  University  of  Bologna  in  1409,  Necessity, 
in  Martene,  Ampl.  Coll.  viii.  894.    A  practical  application  of  this 
doctrine  in  the  French  Subtraction  of  Obedience  (Schwab,  p.  146  ff.) 

and  Declaration  of  NeutraHty  (ib.  211). 

181.  Joh.  Paris,  c.  6,  pp.  155 — 8,  c.  14,  p.  182,  c.  21,  p.  208, 
c.  25,  p.  215—224. 

182.  Mars.  Pat.  11.  c.  15 — 22,  and  iii.  concl.  32  and  41.    All  Marsilius 
other  powers  wielded  by  the  popes  have  been  usurped.    The  Council  ^^.^^  ^ 
has  authority,  not  only  in  matter  of  faith  (11.  c.  18,  20,  iii.  c.  i  and  Council. 
2),  but  also  in  matters  of  excommunication,  punishment,  legislation, 
raising   tithes,    licensing   schools,  canonization,  establishment  of 
festivals  etc.  (11.  c.  7,  21,  iii.  c.  5,  34 — 6). 

183.  See  in  Ockham,  Dial.  i.  c.  5,  c.  14 — 19,  and  iii.  tr.  i,  1.  4,  Divine 
the  opinion  that  the  papacy  rests  upon  human  ordinance;  iii.  tr.  i,  1.  2,  J^^^^p^^p^j 
c.  2,  12 — 14,  16 — 17  and  25,  the  reasons  which  can  be  urged  against  Primacy 
there  being  any  single,  human,  monarchical  head  of  the  Church;  iii.  contested, 
tr.  1,1.  I,  c.  I,  the  question  how  wide  a  power  God  has  committed 

to  the  Pope.  See  also  the  references  to  such  opinions  in  Petr. 
Alliac.  (Gerson,  Op.  i.  p.  662  ff.),  Gerson  (ib.  11.  p.  88,  where  it  is 
said  to  be  a  common  opinion  that  the  pope  is  not  lure  divino  Head 
of  the  Church)  and  Joh.  Breviscoxa,  Tract,  de  fide  (ib.  i.  p.  808, 
esp.  878  ff.).  The  divinity  of  the  primacy  is  decisively  disputed  by 
Nilus,  arch.  Thessalon.,  De  primatu  (Gold.  i.  pp.  30 — 39),  Randuf, 
De  mod.  un.,  Wyclif,  Hus,  and  so  forth. — The  auctoritas  conciliorum 
is  often  mentioned  by  the  older  canonists  as  one  of  the  forces  which 
had  constituted  the  primacy  :  e.g.  Huguccio,  1.  c.  p.  266.  So  d'Ailly 
(Gers.  Op.  11.  p.  905)  seems  to  favour  the  middle  opinion  :  licet 
principaliter  Rom.  eccl.  principatum  habuerit  a  Domino,  tamen  secun- 
dario  a  concilio.    In  the  same  spirit,  Gerson  (11.  p.  239  ff.)  distin- 


156  Political  Theories  of  the  Middle  Age. 


guishes  those  powers  of  the  papacy  that  were  divinely  bestowed  from 
those  that  have  been  acquired  under  human  law. 
Abolition        184.    Ockham,  Dial.  III.  tr.  i,  1.  2,  c.  20 — 27,  treats  the  questions 
/    Pri^ac^    whether  the  Community  of  the  Faithful  possesses  and  might  ex- 
suggested,  pediently  use  a  power  of  changing  the  regal  form  of  ecclesiastical 
government  into  an  aristocratical,  and  vice  versa.   Also  (c.  28)  from  the 
principle  of  autonomy  (quaeUbet  ecclesia  et  quilibet  populus  Christi- 
anus  propria  autoritate  ius  proprium  statuere  pro  sua  utilitate  potest) 
he  deduces  the  right  of  every  people  to  give  itself  a  separate  eccle- 
siastical head,  in  case  the  Pope  be  heretical,  the  papal  see  be  long 
vacant,  or  access  to  Rome  be  impossible. 

185.  Ockham,  Dial.  iii.  tr.  2,  1.  3,  c.  4 — 13.    And  then  to  the 
like  effect  Henr.  de  Langenstein,  Cons.  pac.  c.  14  and  15. 

186.  Ockham,  Octo  q.  i.  c.  15,  iii.  c.  9;  Dial.  iii.  tr.  i,  1.  i,  c.  i 
(where  the  fifth  of  the  suggested  opinions  seems  to  be  his  own). 

The  187.    Ockham,  Octo  q.  i.  c.  17,  iii.  c.  8;  Dial.  i.  5,  c.  27  ;  i.  6, 

J  may^judge  ^'  12—13.  57764769—72,  86.    See  Nilus,  as  in  Note  183.  Anony- 
the  Pope,  mus  De  aetat.  eccl.  c.  6,  p.  28  :  nemo  primam  sedem  iudicare  debet, 
sed  hoc  pertinet  ad  dominam  et  reginam  sponsam  Christi,  cuius 
servus  et  dispensator  est  papa,  quam  universales  synodi  repraesentant. 
Somn.  Virid.  \.  c.  161.    Henr.  de  Langenstein,  Cons.  pac.  c.  15. 
Right  188.    Ockham,  Dial.  i.  6,  c.  84  :  this  is  but  one  instance  of  the 

Church  to  S^^^^^^  right  of  every  autonomous  popidus^  of  every  comfnunitas^  of 
assemble    every  corpus,  to  assemble  itself,  or  to  constitute  an  assembly  of 
constitute  ^^P^^^^^  •  pot^st  aliquos  eligere  qui  vicem  gerant  totius  communi- 
a  Council,  tatis  aut  corporis  absque  alterius  autoritate.  So  the  Universal  Church, 
when  the  holy  see  is  vacant,  might  per  se  conveiiire  were  her  size 
small  enough,  and,  as  it  is,  may  assemble  'per  aliquos  electos  a 
diversis  partibus  ecclesiae.'    The  impulse  to  such  an  assemblage 
may  come  from  the  temporal  powers  or  from  all  the  laity,  in  case  the 
organs  which  in  the  first  instance  are  entitled  to  give  it,  the  prelates 
and  divines,  make  default.    Comp.  Langenstein,  1.  c.  c.  15  :  Conrad 
de  Gelnhausen,  Tr.  de  cong.  concil.  (Martene,  Thesaur.  11.  p.  1200). 
Theory  189.    Zabarella,  De  schism,  p.  703,  and  upon  c.  6,  X.  i,  6,  nr. 

cV^clliar  '  quod  dicitur  quod  papa  habet  plenitudinem  potestatis,  debet 
Party.  intelligi  non  solus  sed  tanquam  caput  universitatis :  ita  quod  ipsa 
potestas  est  in  ipsa  universitate  tanquam  in  fundamento,  sed  in  ipso 
tanquam  ministro,  per  quem  haec  potestas  explicatur.  Petr.  Alliac. 
de  pot.  eccl.  (Gerson,  Op.  11.  p.  949  ff.) :  the  plenitude  of  ecclesias- 
tical power  is  'in  papa  tanquam  in  subiecto  ipsam  recipiente  et 
ministerialiter  exercente,...in  universali  ecclesia  tanquam  in  obiecto 
ipsam  causaliter  et  finaliter  continente,. . .in  generali  conciUo  tanquam 


Notes. 


157 


in  exemplo  ipsam  repraesentante  et  regulariter  dirigente.'  For  Gerson 
see  the  next  note.  Theod.  a  Niem,  De  schismate.  Randuf,  De 
mod.  un.  especially  c.  2,  goes  furthest:  the  Universal  Church  has 
the  power  of  the  keys  from  God,  the  Roman  Church  has  the  exercise 
thereof  only  in  so  far  as  this  has  been  conceded  to  her  by  the 
Universal  Church. 

190.  See  last  Note.  The  whereabouts  of  ecclesiastical  power  Gerson's 
is  more  thoroughly  discussed  by  Gerson  than  by  others  :  Gers.  11. 

225  ff.;  Gold.  II.  1384  ff.  This  power  bestowed  by  Christ's  mandate 
must  in  all  its  elements  be  regarded  from  three  points  of  view  (c.  6). 
'  In  se  formahter  et  absolute'  (i.e.  regarded  abstractedly  and  according 
to  its  simple  essence)  it  is  unchangeably  and  indestructibly  in  the 
Church,  thereby  being  meant  the  complete  system  of  all  essential 
offices,  among  which  offices  the  primacy  is  only  one,  so  that  it  is  a 
part  within  the  whole  (c.  7).  'Respective  et  quodammodo  raateria- 
liter'  (i.e.  regard  being  had  to  the  'subject'  in  which  this  power 
resides)  it  is  in  the  office-holders  for  the  time  being  and  to  this  extent 
also  in  the  Pope,  but,  if  need  be,  can  be  changed  or  taken  away 
(c.  8).  '  Quoad  exercitium  et  usum  '  it  is,  in  a  yet  more  changeable 
and  more  limited  fashion,  allotted  among  the  various  organs  accord- 
ing to  the  Church's  constitution  (c.  9).  In  the  first  of  these  three 
senses  the  power  comes  directly  from  Christ ;  in  the  second  and  third 
senses  '  mediante  homine.' — Then  as  to  the  division  of  power  among 
ecclesiastical  organs,  the  '  plenitudo '  is  both  in  the  Pope  and  the 
'ecclesia  synodaliter  congregata.'  It  is  in  the  latter  more  aboriginally 
and  more  fully  in  four  respects  (ratione  indeviabilitatis,  extensionis, 
regulationis,  generalis  extensionis).  Indeed  it  is  in  the  Pope  '  forma- 
liter  et  monarchice' ;  but  it  is  in  the  Church  as  in  its  final  cause  (in 
ecclesia  ut  in  fine)  and  as  in  its  ordaining,  regulating  and  supple- 
menting wielder  (ordinative,  regulative  et  suppletive).  It  therefore 
is  exercised  by  the  Pope,  while  the  Council  '  usum  et  applicationem 
regulat,'  and  'mortuo  vel  eiecto  papa  supplet'  (c.  10 — 11 ;  also  ^Con- 
cordia quod  plenitudo  eccl.  pot.  sit  in  summo  pontifice  et  in  ecclesia,' 
Op.  II.  p.  259  and  Goldast,  11.  p.  1405).  In  its  latitudo^  on  the  other 
hand,  the  ecclesiastical  power  is  bestowed  on  all  offices  and  therefore 
in  the  highest  degree  on  the  Pope,  but  belongs  to  him  only  in  so  far 
as  respect  is  paid  to  the  subordinate  but  independent  power  of  other 
offices  and  to  the  all-embracing  power  of  the  Council.  (Hiibler's 
account  of  Gerson's  trichotomy  (p.  385  ff.)  is  not  quite  accurate.) 

191.  Zabarella,  De  schism,  pp.  703,  709,  and  c.  6,  X.  i,  6,  nr.  Practical 
15 — 20  :  'ipsa  universitas  totius  ecclesiae  '  is  to  cooperate  in  arduous  ^^J^^^^^ 
matters,  to  decide  on  good  or  bad  administration,  to  accuse,  to  Council. 


1 58  Political  Theories  of  the  Middle  Age. 


Power 
of  the 
Council  to 
assemble. 


Power 
of  the 
Council 
during  a 
Vacancy 
of  the 
Holy  See. 
The 

Cardinals 
are  Repre- 
sentatives 
of  the 
Whole 
Church. 
An  inde- 
pendent 
position 
assigned 
to  the 
Cardinals. 
Mixed 
Govern- 
ment 
in  the 
Church. 


depose,  and  can  never  validly  alienate  these  rights  to  the  Pope. 
Gerson,  De  auferibilitate  papae  (Op.  11.  p.  209  and  Gold.  11.  p.  141 1) 
cons.  10  and  12 — 19,  De  unitate  eccl.  (Op.  11.  113),  De  pot.  eccl. 
c.  II  (comp.  also  Op.  11.  p.  275):  the  Church  or  the  General  Council 
representing  the  Church  can  repress  abuses  of  power,  can  direct  and 
moderate;  can  depose  the  Pope  'auctoritative,  iudicialiter  et  iuridice/ 
not  merely  'conciliative  aut  dictative  vel  denuntiative' ;  nay,  can 
imprison  him  and  put  him  to  death  :  Aristotle  teaches  that  every 
C07)imunitas  libera  has  a  like  inalienable  right  against  its  princeps. 
See  also  Randuf,  c.  5  and  9 ;  Pierre  du  Mont  de  St  Michel  in  Hiibler, 
p.  380,  and  the  doings  at  Constance,  ib.  loi — 2  and  262. 

192.  Petr.  AUiac.  Propos.  util.  (Gerson,  Op.  11.  p.  112) :  a  right 
of  the  Council  to  assemble  of  its  own  accord  is  deduced  both  from 
the  power  given  by  Christ  and  (after  Ockham's  fashion)  from  the 
natural  right  of  every  corpics  civile  seu  civilis  coi7imunitas  vel  politia 
rite  ordinata  to  assemble  itself  for  the  preservation  of  its  unity. 
(Somewhat  otherwise  at  an  earHer  date,  ib.  i.  pp.  661 — 2.)  Randuf, 
c.  3  (p.  164).  Less  unconditionally,  Gerson,  Propos.  (Op.  11.  p.  123), 
De  un.  eccl.  (ib.  113),  De  aufer.  pap.  (c.  11,  ib.  211)  and  De  pot. 
eccl.  (ib.  249).  Zabarella,  De  schism,  pp.  689 — 694,  attributes  the 
right  of  summons  to  the  Cardinals,  and,  failing  them,  to  the  Emperor 
'loco  ipsorum  populorum,'  since  he  represents  the  whole  Christian 
people,  'cum  in  eum  translata  sit  iurisdictio  et  potestas  universi 
orbis ' :  in  the  last  resort,  however,  the  Council  may  assemble  itself 
according  to  the  rules  of  Corporation  Law. 

193.  Gerson,  De  pot.  eccl.  c.  11.  Zabar.  De  schism,  pp.  688 — 9: 
with  application  to  the  case  of  a  schism,  for  then  the  holy  see  is  quasi 
vacans.    Domin.  Gem.  Cons.  65,  nr.  7. 

194.  Octo  conclusiones  per  plures  doctores  in  Italiae  part, 
approb.  ann.  1409  (Gers.  Op.  11.  p.  no):  veri  cardinales  in  electione 
papae  vices  gerunt  universalis  ecclesiae  Christianae.  Zabarella,  c.  6, 
X.  I,  6,  nr.  9,  and  Panorm.  eod.  c.  nr.  15.  According  to  Gerson 
(Op.  II.  pp.  123,  293)  the  Council  might  institute  another  mode  of 
election  :  according  to  Randuf  (c.  9)  it  might  itself  elect. 

195.  Octo  concl.  1.  c.  Gerson,  De  pot.  eccl.  c.  7  and  11.  Petr. 
Alliac.  De  pot.  eccl.  11.  c.  i.  Hiibler,  p.  74,  and  the  Reform  Decrees, 
ib.  129  and  218. 

196.  Gerson,  De  pot.  eccl.  c.  13  :  the  organization  of  ecclesi- 
astical power  should  share  in  the  harmony  and  'pulchra  ordinis 
varietas '  of  iura,  leges,  iurisdictiones  and  dominia  :  therefore  its  politia 
must  be  compounded  of  the  three  good  poHties  of  Aristotle  :  the 
three  degenerate  forms  also  are  possible  in  the  Church.    Pet.  Alliac. 


Notes. 


159 


De  pot.  eccl.  11.  c.  i  (11.  p.  946) :  the  Church  must  have  the  best  of 
constitutions,  and  therefore  'regimen  regium,  non  purum,  sed  mixtum 
cum  aristocratia  et  democratia.' 

197.  Zabar.  De  schism,  pp.   703,  709.     Octo  concl.  1.  c. :  The  ^ 
delegated  nature  of  all  other  powers.    Pierre  du  Mont  de  St  Michel,  above  the 
ann.  1406,  in  Hiibler,  p.  380.    Gerson,  De  unit.  eccl.  (11.  p.  ii3);i'ope. 
Tract,  quomodo  et  an  liceat  etc.  (ib.  303  and  Gold.  11.  15 15);  De 

pot.  eccl.  7  and  11  :  the  Pope  is  only  a  membrum  of  the  corpus 
ecdesiae,  and  is  as  little  above  the  Church  as  a  part  is  above  the 
whole ;  much  rather,  if  the  General  Council  represents  the  Universal 
Church  sufficiently  and  entirely,  then  of  necessity  it  must  include  the 
papal  power,  whether  there  be  a  Pope,  or  whether  he  has  died  a 
natural  or  a  civil  death ;  but  it  will  also  include  the  power  of  the 
cardinals,  bishops  and  priests.  Randuf  will  allow  to  the  Pope  not  a 
whit  more  power  '  than  is  conceded  to  him  by  the  Universal  Church,' 
and  only  a  power  which  is  'quasi  instrumentalis  et  operativa  seu  execu- 
tiva"  (c.  2);  the  concilium  is  thoroughly  'supra  papam,'  and  to  it  he 
owes  obedience  (c.  9) ;  the  Sovereignty  of  the  Council  is  inalienable 
and  all  Canon  Law  to  the  contrary  is  invalid  (c.  17  ;  comp.  c.  23). 
Add  the  famous  decree  of  Session  V.  of  the  Synod  of  Constance,  and 
Gerson,  11.  p.  275  thereon. 

198.  Gerson,  De  pot.  eccl.:   the  '  congregatio  totius  universi- Gerson  on 
tatis  hominum '  could,  it  is  true,  establish  the  Empire,  but  could  not,  j^-^^^ 
without  Christ,  have  laid  the  foundation  of  the  Church  (c.  9) ;  the  of  the 
Church  is  a  system  of  offices,  including  the  papacy,  which  were  ^^P^^^' 
instituted  by  Christ  and  are  indestructible  (c.  7  and  9) ;  the  papacy, 
though  as  a  function  it  is  subject  to  alteration  and  may  be  temporarily 
dispensed  with  (c.  8),  is  as  an  institution  indestructible  (c.  1 1).  Comp. 

De  auferib.  pap.  c.  8  and  20,  where  this  is  made  the  distinctive 
difference  between  the  constitution  of  the  Church  and  civil  con- 
stitutions.   See  also  Op.  11.  pp.  130,  i4"6,  529 — 30,  and  iv.  p.  694. 

199.  See  Randuf,  1.  c,  c.  5. 

200.  In  the  Concordantia  Catholica.    See  also  his  De  auctor. 
praes.  in  Diix,  i.  p.  475  ff. 

201.  Gregory  of  Heimburg  in  his  polemical  writings  touching  Popular 
the  strife  about  the  bishopric  of  Brixen  :  as  to  which  see  Brockhaus,  fjj^j^jy 
Gregor  v.  Heimburg,  pp.  149 — 259.    [For  this  quarrel  the  English  in  the 
reader  should  refer  to  Creighton,  Papacy,  in.  237  :  Nicholas  of  Cusa 

and  Gregory  of  Heimburg  were  concerned  in  it  and  Aeneas  Sylvius 
was  the  then  Pope,  Pius  II.]  According  to  Heimburg  the  Council 
and  only  the  Council  represents  the  eternal,  constant,  infallible 
Church,  realizes  the  Church's  unity  in  a  democratic  form,  and  is 


i6o   Political  Theories  of  the  Middle  Age. 


Canonists 
and  the 
Council. 


The 

System  of 
Antonius 
de  Rosel- 
lis. 


greater  than  the  monarchical  Head  (Gold.  n.  1604  ff.,  1615  ff., 
1626  ff.).  Immediately  from  Christ  it  has  power  over  the  l  ope  in 
matters  of  faith,  unity  and  reform,  and  is  his  superior.  From  the 
Pope  lies  an  appeal  to  the  Council,  as  in  Rome  an  appeal  lay  from 
Senate  to  People  (ib.  1583,  1589,  1591,  1595,  1627);  and  a  papal 
prohibition  of  such  an  appeal  is  invalid  (ib.  1591  and  1628).  If  no 
Council  be  sitting,  the  appeal  is  to  a  future  Council,  since  once  in 
every  ten  years  the  authority  of  the  Church  scattered  throughout  the 
world— an  authority  which  lies  dormant  during  the  intervals — should 
become  visible  (ib.  1580 — 91). — Compare  Almain,  Expos,  ad  octo  q. 
I.  c.  15,  and  Tract,  de  auctor.  eccl.  et  cone.  gen.  (Gers.  Op.  11.  p. 
977  ff.):  the  Church  is  a  Limited  Monarchy,  in  which  the  Council 
ratione  indeviabilitatis  stands  above  the  Pope,  sits  in  judgment  on  him, 
receives  appeals  from  him,  restrains  him  by  laws,  can  depose  him, 
and  so  forth. — Aeneas  Sylvius,  Comment,  de  gestis  Basil,  concilii 
libr.  II.  :  the  comparison  to  the  relationship  between  King  and 
People  is  consistently  pursued. 

202.  Comp.  Ludov.  Rom.,  Panormitanus  (e.g.  upon  c.  2,  X.  i, 
6,  nr.  2 :  potestas  ecclesiastica  est  in  papa  et  in  tota  ecclesia,  in  papa 
ut  in  capite,  in  ecclesia  ut  in  corpore ;  c.  3,  eod.  nr.  2 — 4  ;  c.  6,  eod. 
nr.  15  ;  c.  17,  X.  i,  33,  nr.  2),  Decius  (e.g.  c.  4,  X.  i,  6,  nr.  i — 22; 
c.  5,  eod.  nr.  3;  Cons.  151),  Henr.  de  Bouhic  (e.g.  c.  6,  X.  i,  6), 
Marcus  (e.g.  Dec.  i.  q.  935),  and  so  forth. 

203.  The  Pope  stands  as  Monarch  {caput)  above  the  Council : 
but  so  soon  as  he  prescribes  anything  against  the  Faith  or  the  weal  of 
the  Church  or  beyond  his  official  competence,  the  Council  stands 
above  him,  judges  him,  and  receives  appeals  from  him  (11.  c.  13 — 22, 
and  III.  c.  16 — 17).  Although  therefore  he  normally  has  the  pleni- 
tude of  power  and  his  opinion  has  precedence  over  that  of  'the 
whole  body  mystical,'  still  the  judgment  of  the  whole  Council  takes 
precedence  '  in  a  matter  of  faith,  or  schism,  or  \vhere  the  good  of  the 
universal  Church  is  in  question'  (iii.  c.  26 — 27),  even  if  this  good  be 
but  some  secondary  good;  for  example,  if  there  be  question  as  to  the 
appointment  of  officers.  When  there  is  no  pope  or  there  are  more 
popes  than  one  or  the  pope  is  heretical,  then  the  Council  has  all 
powder  (11.  c.  24).  The  election  of  popes  belongs  to  the  Church 
universal  which  has  committed  it  to  the  cardinals  (i.  c.  48).  Nor- 
mally it  is  for  the  Pope  to  summon  and  authorize  the  Council 
(ill.  c.  I  and  3) :  but  he  is  bound  to  summon  it  for  every  arduous 
affair  of  the  w^hole  Church  or  if  he  himself  is  to  be  called  to  judgment 
(ib.  c.  2).  If  he  makes  default,  then  the  Cardinals,  the  Emperor,  or 
indeed  any  clerk  or  layman  may  call  a  Council,  which  then  con- 


Notes. 


i6i 


lar 


stitutes  itself  of  its  own  authority  (ii.  c.  4  and  24,  iii.  c.  3).  Against 
a  pope  who  has  been  condemned  or  who  impedes  or  dissolves  a 
Council  which  might  depose  him,  there  is  a  general  right  of  resist- 
ance and  renunciation  (11.  c.  23,  26 — 30,  iii.  c.  4 — 6).  To  deal  with 
'mixed'  affairs  ' mixed' councils,  to  which  the  Church  should  submit, 
are  to  be  summoned  by  the  joint  action  of  the  spiritual  and  temporal 
powers  (ill.  c.  15  —  t8  and  21 — 22). 

204.  Turrecremata,  De  pot.  pap.  c.  38.    So  also  Nicholas  ofPopuh 
Cues  (Op.  825 — 9)  in  his  later  days:  for  Plurality  is  evolved  out  of  jg^^^j^^"' 
Unity,  and  the  Body  out  of  the  Head. — After  as  well  as  before  the 
reaction  in  favour  of  the  Papacy,  the  papalists  admit  the  superiority 

of  the  Council  in  '  a  cause  of  faith  or  of  schism '  {contentio  de  papatu 
and  causa  contra  papani),  but  regard  this  as  an  exception.  See,  e.g., 
Card.  Alexandr.  c.  3,  1).  21,  c.  i,  D.  23,  summa,  and  c.  i,  D.  15  ; 
Domin.  Jacobatius  Card.  De  consiliis,  esp.  iv.  a.  7,  nr.  29 — 31  and  vi. 
a.  3,  nr.  41  and  58 — 60,  comp.  with  vi.  a.  3,  nr.  61  ;  also  Petrus  de 
Monte  and  Turrecremata,  in  Schulte,  Geschichte,  11.  p.  319  and  327. 

205.  As  to  the  part  assigned  to  delegates  of  Princes,  Towns  and  Lay 

Universities,  see  Hiibler,  p.  119,  note  3,  120,  note  ^  ;  Voigt,  Enea  ^^P*"^." 

'  '  r       y»  ;  J  '        &  '  sentatives 

Sylvio,  I.  p.  102  ff.    Gerson,  De  pot.  eccl.  (11.  p.  250),  allows  the  in  the 
laity  only  consultative  voices.    Even  Nic.  Cus.  would  allow  them  a  Councils, 
real  voice  only  under  certain  conditions,  but  lets  all  parishioners  take 
part  in  the  parochial  synods,  and  the  laity  are  to  cooperate  in  the 
election  of  parsons  and  bishops  (11.  c.  16,  iii.  c.  8 — 24). 

206.  Gerson,  Propos.  coram  Anglicis,  ann.  1409  (Op.  11.  pp.  128  The 

— 130),  De  aufer.  pap.  (ib.  209  ff.),  De  pot.  eccl.  c.  7  and  9,  Sermo  in  ^jJ^.'J^j'jJlg^" 

Op.  II.  p.  436  ff.    So  also  Petr.  Alliac.  (ib.  i.  p.  666  ff.  and  690)  and  rather 

Nic.  Cus.  (i.  c.  7 — 10  and  11.  c.  19)  regard  the  Priesthood  as  the  l^'^^'i^  ^ 

^      .  ' .       .  y     o  ^  Fellow- 

essential  and  distinctive  mark  of  the  Church.    As  to  Heinrich  v.  ship. 

Langenstein,  see  his  biography  by  O.  Hartwig,  i.  pp.  56 — 57.  [Dr 

Gierke  here  contrasts  an  idea  of  the  Church  which  is  anstalilich  with 

one  which  is  ge?tossenschaftltch.    Some  learning  of  a  technically  legal 

kind  is  imphed  by  the  employment  of  these  words,  and  it  cannot  be 

briefly  explained  in  English.    But  we  shall  not  go  far  wrong  if  we 

contrast  the  idea  of  the  Church  as  '  a  corporation  aggregate,'  congre- 

gatio  fidelium^  with  that  of  the  Church  as  a  system  (^Inbegriff)  of 

personified  offices,  or  (as  we  say  in  England)  of  'corporations 

sole.'] 

207.  So  e.g.  in  Randuf,  De  mod.  un.  in   Gerson,  Op.  11. 
p.  161  ff 

208.  Ockham,  Dial.  i.  5,  c.  i — 35.  So  almost  verbatim  Petr.  Fallibility 
Alliac.  (Gers.  Op.  i.  p.  661  ff.)  who,  however,  does  not  draw  infer- ^'^^"'^ 

M.  II 


1 62  Political  Theories  of  the  Middle  Age. 


Part  of  the 
Church. 

The  Laity 
and  the 
Election 
of  Popes. 

The 

Emperor's 
part  in 
Papal 
Elections. 
The 

Temporal 
Magistrate 
as  Repre- 
sentative 
of  the 
Laity. 
The 

Objectifi- 
cation  of 
Office  or 
Dignity. 


The 

Prelate  as 
Repre- 
sentative 
of  his 
Church. 


Is  the 
Pope  the 
Church  ? 


ences  as  to  the  active  participation  of  the  laity  in  the  constitution  of 
the  Church.    Comp.  Randuf,  c.  3. 

209.  Ockham,  Dial.  iii.  tr.  2,  1.  3,  c.  4 — 15  :  refuting  opinions 
which  would  attribute  this  right  only  to  the  Canons,  or  the  Clergy,  or 
the  Emperor. 

210.  Ockham,  1.  c,  c.  5,  7,  12  (vice  omnium  eligeret)  :  not  as 
Emperor  (c.  2,  3,  13),  nor  by  the  authority  of  the  Pope  (c.  5,  7). 
Comp.  Octo  q.  iv.  c.  6;  also  iii.  c.  8,  and  i.  c.  17. 

211.  See  e.g.  Ockham,  Octo  q.  iii.  c.  8,  Dial.  i.  6,  c.  85, 
91  — 100. — So  too  Wyclif  and  Hus,  rejecting  the  severance  of  Clergy 
and  Laity,  end  by  placing  the  ecclesiastical  power  in  the  hands  of  the 
State.    See  Lechner,  Johan  v.  Wiclif,  i.  p.  566  ff.  and  597  ff. 

212.  [Dr  Gierke  here  refers  to  other  parts  of  his  work  in  which 
he  has  given  copious  illustrations  of  this  matter.  The  office  or 
dignity  can  be  'objectified,'  i.e.  conceived  as  a  'thing'  in  which 
rights  exist,  and  which  remains  the  same  while  men  successively 
hold  it ;  and  then  again  it  can  be  '  subjectified '  and  conceived  as  a 
person  (or  substitute  for  a  person)  capable  of  owning  things.  In  the 
present  note  he  cites  from  Baldus  '  dignitas...vice  personae  fungi tur,' 
and  refers  to  a  legal  opinion  touching  a  mitre  which  the  deposed 
John  XXIII.  was  detaining  from  Martin  V.  and  which  was  said  to 
belong  to  the  (subjectified)  Apostolic  See.] 

213.  [Our  author  here  refers  to  his  treatment  of  this  subject  in 
other  parts  of  his  book.  It  was  generally  agreed  that,  although  the 
Prelate  was  very  often  entitled  solely  to  exercise  those  rights  which 
legal  texts  ascribed  to  his  ecclesia^  still  he  was  not  the  ecclesia.  Divers 
analogies  were  sought.  He  acts  'sicut  maritus  in  causa  uxoris'; 
or  again,  he  is  the  tutor  and  the  ecclesia  is  his  pupillus.  They 
all  imply  that,  beside  the  Prelate,  there  is  some  other  person  con- 
cerned. Then  practical  inferences  were  drawn  :  e.g.,  a  Prelate  may 
not  be  judge  in  causa  propria;  but  it  is  otherwise  in  causa  ecclesiae 
suae.] 

214.  Only  in  this  sense  'papa  ipse  ecclesia'  (e.g.  Huguccio,  1.  c, 
p.  263),  'papa  est  sedes  apostolica'  (Dur.  Spec.  i.  i  de  leg.  §  5,  nr. 
i),  'ecclesia  intelligitur  facere  quod  facit  papa'  (Joh.  And.  Nov.  s. 
c.  I  in  Sexto,  2,  12,  nr.  r).  Comp.  Domin.  Gem.  Cons.  93,  nr.  12; 
Cardin.  Alex,  in  summa  D.  15  (what  the  head  does,  the  body  does); 
Jacobat.,  De  cone.  iv.  a.  7,  nr.  29—31,  vi.  a.  3,  nr.  41  and  58  ff.:  the 
present  Pope  alone  represents  the  whole  church  and  is  thus  ecclesia 
corporalis:  such  also  is  the  case  of  a  Bishop  in  those  matters  in 
which  the  counsel,  but  not  the  consent,  of  the  Chapter  is  requisite. 

215.  Ockham,  Dial.  i.  5,  c.  25  :  only  within  certain  limits  is 


Notes. 


the  Pope  '  persona  publica  totiiis  communitatis  gerens  vicem  et  Is  the 
curam/    Zabar.  c.  6,  X.  i,  6,  nr.  i6  :  non  solus  sed  tanquam  caput  ^gp^g^. 
universitatis.    Gerson,  De  aufer.  c.  8 — 20,  De  pot.  eccl.  c.  7.    Nic.  sentation 

CUS.  I.  C.  14 — 17,  II.  C.  27  ff.    Ant.  ROS.  11.  C.  20 — 24,  III.  C.  16 — 17.  Church 

216.  Baldus,  Ruhr.  C.  10,  i,  nr.  12,  13,  18:  princeps  reprae- unlimited ? 

sentat  ilium  populum  et   ille   populus  imperium   etiam   mortuo  Repre- 

.     .  .  .  ^  sentation 

principe ;  but  '  princeps  est  imperium,  est  fiscus,  because  only  in  him  of  the 

does  the  Empire  live,  will  and  act.     Cons.  iii.  c.  159,  nr.  5  :  'ipsa  Empire 

respublica  repraesentata '  can  be  bound  by  the  acts  of  the  Emperor.  Emperor. 

Also  Ockham,  in  Note  210  above,  and  Zabarella  in  Note  192. 

217.  Already  Joh.  Saresb.  iv.  c.  3:   the  king  'gerit  fideliter  Repre- 
ministerium,'  if  he  '  suae  conditionis  memor,  universitatis  subiect-  (^^^racter 
orum  se  personam  gerere  recordatur';  compare  c.  5.    Thom.  Aquin.  of  King- 
Summa  Theol.  11.  i,  q.  90,  ad  3  :  Ordinare  autem  aliquid  in  bonum  ^'^^P' 
commune  est  vel  totius  multitudinis  vel  alicuius  gerentis  vicem  totius 
multitudinis :  et  ideo  condere  legem  vel  pertinet  ad  totam  multitudinem 

vel  pertinet  ad  personam  publicam  quae  totius  multitudinis  curam 
habet.  So  again  ib.  97,  a.  3.  Mars.  Pat.  Def.  pac.  i.  15  :  when  the 
rulers  {pri7icipanies)  act  within  the  sphere  constitutionally  assigned 
to  them  (secundum  communitatis  determinationem  legalem),  their 
act  is  that  of  the  whole  community  (hoc  facientibus  his,  id  facit 
communitas  universa).  Baldus,  Consil.  159,  nr.  5  and  especially 
I  Feud.  14,  pr.  nr.  i  :  'The  city  of  Bologna  belongs  to  the  Church!' 
exclaims  Baldus,  '  Much  rather  to  the  Bolognese  !  For  the  Church 
has  no  authority  there,  save  as  {tatiquam)  the  Republic,  of  which 
Repubhc  it  bears  the  name  and  image.  Even  so  the  city  of  Siena 
belongs  to  the  Kaiser,  but  more  to  the  Sienese :  for  republic,  fisc, 
and  prince  are  all  one  ;  the  respublica  est  sicut  vivacitas  sensuum  ;  the 
fisc  is  the  stomach,  purse  and  fastness  of  the  republic ;  therefore 
the  Emperor  would  be  quasi  tyrannus  if  he  did  not  behave  himself 
as  the  Republic,  and  such  are  many  other  kings  who  seek  their  own 
profit :  for  he  is  a  robber,  a  praedo^  who  seeks  his  own  profit  and  not 
the  profit  of  the  owner.'  [Dr  Gierke  gives  this  interesting  passage  in 
Latin.]  See  also  nr.  2  :  the  office  of  ruler  {dig?titas)  is  inalienable, 
being  '  totius  universitatis  decus.'  Barth.  Salic.  1.  4,  C.  2,  54 :  the 
civitas  as  such  can  demand  a  restitutio  in  integrum^  even  if  the  Ruler 
who  acted  in  its  name  profited  by  the  transaction :  and,  despite 
the  translation  this  holds  good  of  the  respublica  imperii.  Jason,  1.  c, 
nr.  8.    Nic.  Cus.,  above  in  Note  171. 

218.  Baldus,  Cons.  iii.  c.  159,  nr.  5  :  loco  duarum  personarum  The 

rex  fungitur;  i.  c.  271,  nr.  4:  bona  propria... non  tanquam  rex,  sed  ^^^^fg^'^ 
tanquam  homo  et  animal  rationabile.    Alex.  Tart.  1.  25  §  i.  Dig.  29,  Person- 

ll_2  ality. 


164  Political  Theories  of  the  Middle  Age. 


2,  nr.  4:  fiscalis  res  et  Caesaris  res  est  eadem,  quia  omnia  iura 
fiscalia  transferuntur  in  eum  tanquam  imperatorem  non  tanquam 
Titium  :  but  with  the  '  patrimonium  Caesaris '  it  is  otherwise,  for  this 
he  has  *  tanquam  Titius.'  Marcus,  Dec.  i.  q.  338,  nr.  i — 7.  [Refer- 
ence is  made  by  Dr  Gierke  to  other  parts  of  his  book  where  the  dual 
personality  of  bishops  and  the  like  is  discussed  :  a  bishop,  it  was 
said,  had  two  persons;  one  'in  quantum  est  episcopus';  the  other 
'in  quantum  est  Petrus  vel  Martinus.'] 
King's  219.    See  last  note.    Also  Ockham,  Octo  q.  11.  c.  2  :  what  the 

Property  Kaiser  had  before  he  was  Kaiser  or  afterwards  acquired  '  per  se  et 
and  State's  ,  ,,,,,, 

Property,   non  digmtati,  is  his  private  property.    On  the  other  hand,  the  bona 

et  iura  imperii '  exist  '  propter  bonum  commune  subditorum  et  non 
propter  bonum  proprium  principatus.'  Of  these  last  he  can  dispose 
'non  nisi  propter  bonum  commune  seu  utilitatem  omnium  subdit- 
orum,' and  if  he  do  otherwise  he  is  bound  to  make  restitution  like 
anyone  else  who  misapphes  goods  that  have  been  entrusted  to  him. 
Acts  of  220.    Baldus,  Cons.  i.  271,  326,  327;  iii.  c.  159,  371.  The 

and^ctT^  question  is  whether  and  in  what  case  a  Prince,  elective  or  hereditary, 
of  the  is  bound  by  the  acts  of  his  predecessor,  and  Baldus  always  acutely 
Man.  reduces  this  to  the  question  in  what  cases  the  State,  or  the  Fisc,  is 
bound  by  the  acts  of  its  highest  organ.  When  it  comes  to  particu- 
lars, he  applies  the  ordinary  rules  of  Corporation  Law  touching  the 
liability  of  corporations  for  the  contracts  and  torts  of  their  governors; 
but  in  the  case  of  Kings  and  more  especially  of  hereditary  Kings 
he  supposes  an  unusually  wide  power  of  representation.  A  king  is 
no  mere  '  legitimus  administrator,'  but  stands  '  loco  domini '  (nam 
regnum  magis  assimilatur  dominio  quam  simphci  regimini):  and  in 
particular  his  power  to  bind  by  contract  extends  to  unusual  as  well 
as  to  usual  affairs.  In  the  same  sense,  Jason,  Cons.  iii.  c.  10, 
distinguishes  the  Ruler's  'pacta  personalia,'  and  'pacta  realia  nomine 
suae  gentis  inita'  (c.  8),  extends  the  principle  to  judicial  acts  (nr.  10), 
appeals  to  ecclesiastical  analogies  (nr.  15 — 19),  and  then  declares 
that  the  successor  is  bound  as  successor  '  si  princeps  faciat  ea  quae 
sunt  de  natura  vel  consuetudine  sui  officii'  (nr.  21),  or  if  the  conven- 
tion was  made  'in  utilitatem  status'  (nr.  14).  Comp.  Bologninus, 
Cons.  6.  On  the  other  hand  Picus  a  Monte  Pico,  i.  Feud.  3,  nr.  i — 3, 
and  I.  Feud.  7,  nr.  i — 17,  once  more  throws  the  whole  question  into 
confusion. 

221.    Nic.  Cus.,  above  in  Notes  171  and  209;  Gerson,  De  pot. 
eccl.  c.  10,  and  Concordia,  p.  259. 
Duties  222.    See,  e.g.  Eng.  Volk.  De  reg.  princ.  iv.  c.  21 — 29  ;  alongside 

towards     ^.j^g  duties  arising  between  individuals  as  men,  as  fellow  countrymen, 


Notes. 


165 


as  fellow  burgesses,  as  kinsmen,  as  members  of  social  groups,  stand  Indivi- 
their  duties  to  the  Whole  which  arise  out  of  '  ilia  coniunctio  qua  DTdes^'to 
unusquisque  privatus  universitati  sive  reipublicae  tanquam  membrum  the  Com- 
corpori  et  tanquam  pars  toti  consociatur.'    Comp.  vii.  c.  8 — 12  as  to  "^"^^^y- 
the  different  '  status  personae.' 

223.  Mars.  Pat.  i.  c.  12  :  the  populus  is  sovereign;  the  populus  Rights  of 
is  the  universitas  civium ;  a  civis  is  one  who  '  secundum  suum  J^u^^ty"^' 
gradum '  takes  part  in  public  affairs ;  excluded  are  '  pueri,  servi,  exercised 
advenae  ac  mulieres.'  So  I'hom.  Aq.  Comm.  ad  PoHt.  p.  452  and  ^^ctive 
460  (comp.  also  Summa  Theol.  11.  i,  q.  105,  a.  i)  and  Patric.  Sen.  Members. 
De  inst.  reip.  i.  3,  p.  22  define  civis  in  the  Aristotelian  way,  so  as  to 
equate  it  with  'active  citizen.' 

224.  Lup.  Bebenb.  c.  17,  p.  406  :  et  intelligo  populum  Romani  Repre- 
imperii  connumeratis  principibus  electoribus  ac  etiam  aliis  prin-  of^^e^^" 
cipibus,  comitibus  et  baronibus  regni  et  imperii  Romanorum  :  nam  People  as 
appellatione  populi  continentur  etiam  patricii  et  senatores.    And  so  of^ggfat^s 
other  writers. — Even  the  Radical  Marsilius  admits  to  the  legislative 
assembly  everyone  'secundum  suum  gradum';  tries  to  secure  the 
influence  of  the  docti  et  sapientes  in  the  discovery  and  redaction  of 

laws,  and  apparently  would  give  no  unconditional  support  to  a  system 
of  equal  votes,  for  the  valentior  pars  which  decides  seems  to  be 
measured  'secundum  poHtiarum  consuetudinem  honestam.'  See 
Def.  pac.  I.  12 — 13  and  15  ;  also  De  transl.  imp.  c.  6. 

225.  Mars.  Pat.  Def.  i.  pac.  c.  12 — 13  :  the  voluntas  of  the  uni-  Will  of 
versitas  civium  becomes  law  by  being  expressly  declared  in  the  People 

CXDrCSSGQ 

congregatio  generalis ;  i.  c.  17:  the  act  is  a  single  act  though  done  by  by  Assem- 
many  in  common  ;  iii.  c.  6.    So  also  Aegid.  Col.  11.  i,  c.  3. 

226.  From  Corporation  Law  are  deduced  the  exclusive  right  of  The  Rules 
the  Pope  to  summon  the  Council  (e.g.  Card.  Alex.  c.  2,  D.  17),  and  poSion 
by  others  a  right  of  summons  normally  to  be  exercised  by  the  Pope  Law  are 
(Jacobat.  De  Cone.  iv.  a.  7,  nr.  24;  Ant.  Ros.  iii.  c.  i — 3),  but  p^^Jj^J^j^^ 
supplemented  by  a  right  of  the  Cardinals  or  such  part  of  their  body  Assem- 
as  does  not  make  default  (Zabar.  De  schism,  p.  689 ;  Ros.  iii.  c.  3  ;  ^' 
Decius,  Cons.  151,  nr.  13 — 22)  and  of  the  Kaiser  (above.  Note  48); 

and  the  right  of  the  Council  to  assemble  itself  is  similarly  deduced 
(above,  Notes  188,  192,  203).  It  is  opined  that  if  all  the  members, 
though  unsummoned,  were  present,  then,  as  in  the  case  of  other 
corporations,  they  might  proceed  to  business  (Ros.  11.  c.  4).  If  all 
are  not  present,  then  Zabarella  (comp.  De  schismate,  pp.  693 — 4) 
vouching  Innocent  [IV.]  would  require  the  presence  of  two-thirds, 
who  would  then  have  to  summon  the  others  and  wait  until  they 
either  appeared  or  could  be  declared  guilty  of  contumacy.    On  the 


1 66  Political  Theories  of  the  Middle  Age. 


Corpora- 
tion Law 
and  the 
General 
Council. 


Majorities 
how 

reckoned. 


Other  hand,  Rosellus  (iii.  c.  4)  and  Jacobatius  (iv.  a.  7,  nr.  25 — 8) 
argue  that  in  the  case  of  the  Council  an  iminiiiens  periculu?n  vel 
necessitas  may  always  be  presupposed,  and  that,  when  this  is  so,  even 
a  minority  can  summon  the  others  and  preclude  them,  since,  accord- 
ing to  Corporation  Law,  the  pars  in  casu  periciili  non  contumax 
is  in  truth  the  maior  et  sanior pars.  [In  an  earlier  part  of  his  book 
Dr  Gierke  has  explored  the  formation  of  a  law  and  theory  of  corpo- 
rate assemblies.  The  legists,  relying  on  certain  texts  which  concerned 
the  Roman  decuriones,  were  inclined  strictly  to  require  the  presence 
of  two-thirds  of  the  members.  This  requirement  the  canonists 
mitigated  in  divers  fashions.  They  also  held  that  if  no  meeting  had 
been  summoned,  but  two-thirds  of  the  members  were  present,  those 
present  might  proceed  to  business,  but  ought  to  summon  the  others 
unless  there  were  danger  {periculum)  in  delay.  Then,  according  to 
the  canonists,  it  was  not  a  mere  maior  pars  but  a  maior  et  sanior  pars 
that  could  validly  outvote  a  minority.] 

227.  See  especially  Jacobat.  iv.  a.  7.  He  elaborately  argues 
that  1.  3  et  4,  Dig.  3,  4  are  not  to  be  applied,  and  that,  according  to 
the  canonical  principle  '  Vocati  non  venientes  constituunt  se  alienos,' 
even  a  minority  can  act  (nr.  i — 16);  also  that  the  right  of  the 
contempti  to  re-open  a  question  has  no  existence  in  this  case,  since  a 
citatio  generalis  is  sufficient  (nr.  16 — 23);  and  so  forth.    Also  Ros. 

III.  c.  7 — 14  (in  c.  14  the  requirement  of  two-thirds  is  set  aside). 
Card.  Alex.  c.  2,  D.  17.  [The  Canonists  had  practically  circum- 
vented the  requirement  that  two-thirds  of  the  members  should  be 
present,  by  holding  that  those  who  failed  to  appear  when  duly 
summoned  were  in  contempt,  had  '  made  themselves  ahen '  and  were 
not  to  be  counted.] 

228.  Zabar.  De  schism,  p.  689.  Panorm.  c.  26,  X.  2,  27,  nr.  13. 
Even  in  the  Council  the  voice  that  prevailed  was  to  be  that  of  the 
greater  'and  sounder'  part  (Card.  Alex.  c.  i,  D.  15  in  fine;  Jacobat. 

IV.  a.  3,  nr.  i — 41)  ;  and  with  this  was  connected  the  principle  that 
matters  of  faith  were  not  to  be  decided  by  mere  majorities  (Jacobat. 
1.  c.  nr.  7 — 12  and  25  ;  Nic.  Cus.  i.  c.  4).  The  words  of  Cusanus 
(11.  c.  15)  carry  us  back  to  old  Germanic  thoughts  :  quia  quisque  ad 
synodum  pergens  iudicio  maioris  partis  se  submittere  tenetur... 
synodus  finaliter  ex  concordia  omnium  definit.  [The  old  Germanic 
thought  is  that  unanimity  is  requisite,  but  that  a  minority  ought  to 
and  can  be  compelled  to  give  way.]  Also  we  may  see  that  the  iura 
singulorum  are  to  be  protected  against  the  vote  of  the  majority 
(Jacobat.  1.  c.  nr.  27 — 32).  During  the  strife  over  the  adjournment 
of  the  Council  of  Basel,  an  odd  inference  was  drawn  from  this 


Notes. 


167 


principle,  namely,  that  the  minority  or  even  any  one  member  could 
resist  an  adjournment  to  another  place  on  the  ground  of  '  vested 
right'  {jus  quaesitiim) :  see  Ludov.  Rom.  Cons.  352,  nr.  10 — 24,  and 
Cons.  522;  Jacobat.  1.  c.  nr.  36 — 39,  and  ib.  a.  7,  nr.  35.  [Under 
the  rubric  iura  singulorum,  medieval  law  withdraws  from  the  power 
of  the  majority  rights  of  individual  corporators  which  are  more  or 
less  closely  implicated  in  the  property  and  affairs  of  the  corporation. 
A  modern  example  would  be  the  shareholder's  'share':  this  does  not 
lie  at  the  mercy  of  a  majority ;  a  medieval  example  would  be  a 
canon's  'prebend.'] 

229.  The  plan  of  voting  by  Nations  was  justified  by  the  rules  Majorities 
that  dealt  with  the  conjoint  action  of  divers  corpora  (Panorm.  c.  40,  ^^f^j^j^g 
X.  I,  6,  nr.  6,  Jacobat.  iv.  a.  3,  nr.  52 — 57),  while  the  opponents  of  in  the 
that  plan  made  much  of  the  unity  of  the  whole  body  of  the  Church 

(Card.  Alex.  c.  i,  D.  15  in  fine).  See  Hiibler,  p.  279,  n.  60  and 
316  ff.  [The  federalistic  character  of  medieval  groups  gave  rise  to 
many  elaborate  schemes  for  securing  a  certain  amount  of  unity  and 
independence  to  those  smaller  bodies  that  were  components  of  a 
larger  body,  e.g.  the  faculties  and  nations  within  an  university.] 

230.  See  e.g.  Mars.  Pat.  Def.  pac.  i.  c.  12,  13,  15,  17  :  what  the  The 

valentior  pars  does  is  'pro  eodem  accipiendum'  as  that  which  the  Majority 

as  a  Repre- 

tota  universitas  does,  for  the  '  valentior  pars  totam  universitatem  sentation 
repraesentat.'    Eng.  Volk.  De  reg.  pr.  i.  c.  5,  7,  10,  14.    Lup.  ^^^^-^^ 
Bebenb.  c.  6  and  12.     Ockham   and   Ant.   Ros.  as  above,  in 
Note  145. 

231.  Ockham,  Dial.  iii.  tr.  2,  1.  i,  c.  29 — 30:  quaecunque  Corporate 
universitas  seu  communitas  particularis  propter  culpam  suam  potest  J^^^^jJ^ 
privari  quocunque  honore  et  iure  speciali ;  and  therefore  for  culpa  the  Roman 
Romans  may  be  deprived  of  their  lordship  in  the  Empire ;  and  so  People, 
with  other  nations  ;  and  so  for  their  culpa  whole  portions  of  mankind 

can  be  deprived  of  their  active  rights  in  the  World-State,  and  many 
think  that  this  has  happened  to  the  Jews  and  Heathen,  their  share  in 
the  Empire  having  'devolved'  to  the  Christians.  But,  according  to 
1.  2,  c.  5,  there  ought  to  be  a  formal  sententia  of  the  universitas 
mortaliu77i  or  its  representatives.  Whether  the  papal  '  translatio  a 
Graecis  in  Germanos '  was  founded  on  this  principle  and  whether 
that  act  was  rightful  or  wrongful  could,  says  Ockham  (Octo  q.  11.  c.  9), 
be  known  only  to  one  who  possessed  all  the  documents  of  that  age. 

232.  See  the  definition  given  by  Konrad  v.  Gelnhausen,  De  Repre- 

1  •  /•     TVT    .  \  sentative 

congreg.  cone.  temp,  schism,  an.  1391  (m  Martene  11.  p.  1200) :  (j^^aracter 

concilium  generale  est  multarum  vel  plurium  personarum  rite  con-oft^e 

,  .        .  Council, 

vocatarum  repraesentantmm  vel  gerentmm  vicem  diversorum  statuum, 


1 68  Political  Theories  of  the  Middle  Age. 


The 
Council 
a  mere 
Repre- 
sentative. 


Election 
and  Repre 
sentation. 


Election 
of  Lay 
Repre- 
sentatives 


Repre- 
sentation 
in  Tem- 
poral 
Assem- 
blies. 


ordinum  et  personarum  totius  Christianitatis  venire  aut  mittere 
volentium  aut  potentium  ad  tractandum  de  bono  communi  uni- 
versalis ecclesiae  in  unum  locum  communem  congregatio.  Gerson, 
De  aufer.  c.  lo;  De  pot.  eccl.  c  7  ff.  Nic.  Cus.  De  auctor.  praes. 
(in  Diix,  i.  p.  475  ff.) :  the  Pope  is  the  remotest,  the  General  Council 
the  directest  and  surest  representative  of  the  Universal  Church. 
Decius,  c.  4,  X.  i,  6,  nr.  21. 

233.  See  Ockham,  Dial.  i.  5,  c.  25 — 28  :  even  the  representative 
Council  is  only  pars  ecclesiae  \  it  stands  below  the  'communitas 
fidelium  si  posset  convenire ' ;  is  summoned  by  human  agency  and 
can  be  dissolved ;  and  it  can  err,  so  that  resistance  to,  appeal  from, 
and  accusation  against  it  are  not  inconceivable.  Similarly  at  some 
points,  Petr.  Alliac.  in  Gers.  Op.  i.  p.  688  ff.,  and  again  at  the 
Synod  of  Constance  (Sess.  I.  in  Mansi,  xxvii.  p.  547). — So  Breviscoxa 
(Gers.  Op.  i.  p.  898)  speaks  with  hesitation  about  the  Council's 
infaUibility. — On  the  other  hand,  Gerson  and  Cusanus  (11.  c.  15 — 16) 
maintain  its  infaUibility,  its  representation  of  the  Church  being 
absorptive. 

234.  Nic.  Cus.  I.  c.  15  and  11.  c.  18:  it  is  on  the  ground  of 
election  that  *  praesidentes  figurant  suam  subiectam  ecclesiam'  and 
that  Councils  of  such  prelates  represent  the  larger  circles  of  the 
Church  ;  and  so  on  up  to  a  representation  of  the  Church  Universal. 
Ant.  Butr.  c.  17,  X.  i,  33,  nr.  27 — 28  :  at  the  Provincial  Councils  the 
Prelates  and  '  Rectores '  do  not  appear  as  individuals,  but  '  quilibet 
praelatus  vel  rector  tenet  vicem  universitatis.'  Zabar.  c.  ult.,  X.  3, 
10,  nr.  I — 3.  Panorm.  c.  17,  X.  i,  33,  nr.  2  :  in  the  General  Council 
'praelati  totius  orbis  conveniunt  et  faciunt  unum  corpus,  repraesent- 
antes  ecclesiam  universalem ' ;  so  the  praelati  et  maiores  of  the 
province  represent  their  universitates,  and  so  in  their  Provincial 
Assembly  they  represent  the  universitates  ecclesiarum  of  the  province  ; 
and  again  'in  una  dioecesi... praelati  et  capitula  repraesentant  totum 
clerum ' ;  and  so  also  is  it  in  the  constitution  of  Universities. 

235.  Ockham,  Dial.  i.  6,  c.  84  (above,  Note  209) :  he  appeals  to 
the  general  right  of  every  people,  every  commune,  every  corpus^  to 
assemble,  not  only  in  proper  person  but  also  '  per  aliquos  electos  a 
diversis  partibus,'  for  every  body  'potest  aliquos  eligere  qui  vicem 
gerant  totius  communitatis  aut  corporis.' 

236.  See  above,  Notes  161 — 3,  168,  172.  Marsil.  Pat.  i.  c. 
12 — 13 :  vicem  et  auctoritatem  universitatis  civium  repraesentant.  Nic. 
Cus.  III.  c.  12  and  25.  Men  thought  that  certain  texts  in  the  Corpus 
Juris  assigned  a  similar  position  to  the  Roman  Senate.  [Our  author 
is  referring  in  particular  to  certain  words  of  Pomponius  (1.  2,  §  9, 


Notes. 


169 


Dig.  I,  2)  which,  he  says,  exercised  a  marked  influence  on  Political 
Theory ;  deinde  quia  diflicile  plebs  convenire  coepit,  populus  certe 
multo  difficilius  in  tanta  turba  hominum,  necessitas  ipsa  curam 
reipublicae  ad  senatum  deduxit.  He  here  remarks  that  already  in 
the  Brachylogus — a  manual  of  Roman  law  which  he  is  inclined  to 
ascribe  to  Orleans  and  the  twelfth  century — these  words  of  Pomponius 
are  supposed  to  record  a  formal  transfer  of  power  by  the  populus  to 
the  senate.] 

237.  See  the  formulation  of  the  general  principle  in  Ockharn 
(above,  Note  235)  and  Mars.  Pat.  1.  c. 

238.  Nic.  Cus.  III.  c.  12  and  25:  elected  governors  are  to  The 
represent  communities ;  assemblies  of  such  governors  are  to  repre-  ^^^^dve 
sent  the  lands  and  provinces;  and  an  universale  concilium  imperiale^ 2ix\\2i- 

is  to  represent  the  Reich  :  in  this  council  '  praesides  provinciarum  ^^"^^^^^^"^ 
suas  provincias  repraesentantes  ac  etiam  universitatum  magnarum  Nicholas 
rectores  ac  magistri '  and  also  men  of  senatorial  rank  are  to  meet ; 
they  will  compose  the  'corpus  imperiale  cuius  caput  est  Caesar,  et 
dum  simul  conveniunt  in  uno  compendio  repraesentatiDo^  totum  im- 
periuin  collectum  est.' 

239.  Mars.  Pat.  i.  c.  12 — 13;  he  says  in  c.  12:  sive  id  fecerit  The 
universitas  praedicta  civium  aut  eius  pars  valentior  per  se  ipsam  j^^^Qf^^' 
immediate,  sive  id  alicui  vel  aliquibus  commiserit  faciendum,  qui  Marsilius. 
legislator  simpliciter  non  sunt  nec  esse  possunt,  sed  solum  ad  aliquid 

et  quandoque  ac  secundum  primi  legislatoris  auctoritatem. 

240.  Lup.  Bebenb.  c.  5,  p.  352 — 3  and  c.  6,  p.  357 — 8:  the  The  Prince 

Prince  Electors  make  the  election  *  repraesentantes  in  hoc  omnes  Electors 

^  ,  as  Repre- 

principes  et  populum  Germaniae,  Italiae  et  aliarum  provinciarum  et  sentatives. 

terrarum  regni  et  imperii,  quasi  vice  omnium  eligendo.'   Were  it  not 

for  their  institution,  the  '  universitas  ipsa '  would  have  to  make  the 

choice ;  but,  as  it  is,  the  Electors  choose  '  vice  et  auctoritate  univer- 

sitatis.'    When  therefore  they  have  made  the  choice,  'proinde  est  ac 

si  tota  universitas  principum  et  populi...fecisset' ;  to  prove  which 

voucher  is  made  of  1.  6  §  i.  Dig.  3,  4,  and  c.  ult.  in  Sexto  de  prae- 

bendis.    See  also  the  participation  of  the  Electors  in  the  deposition 

of  an  Emperor,  c.  12,  p.  386 — 7,  and  in  the  alienation  of  rights  of 

sovereignty,  c.  14,  p.  396. — Comp.  Ockharn,  Octo  q.  viii.  c.  3 : 

'repraesentantes  universitatem.'    Zabar.  c.  34  §  veruni  X.  i,  6,  nr.  8. 

Nic.  Cus.  III.  c.  4  :  '  qui  vice  omnium  eligerent.'    Gregor.  Heimb. 

in  Gold.  I.  p.  561.    Ant.  Ros.  i.  c.  48. 

241.  See  above,  Notes  174  and  194.    Ockham,  Dial.  i.  5,  c.  6  The 
and  8.    Nic.  Cus.  i.  c.  14,  17,  11.  c.  14  (repraesentant) ;  Ant.  Ros.  ^^^^^p^^^ 
I.  c.  48  :  ab  universali  ecclesia,  quam  cardinales  et  electores  in  hoc  sentatives. 


1 70  Political  Theories  of  the  Middle  Age. 


ipsam  totam  repraesentant. — Nic.  Cus.  11.  c.  14 — 15  desires  therefore 
to  extend  to  the  Cardinals  the  elective  principle,  which  is  in  his  eyes 
the  only  conceivable  foundation  for  a  mandate  in  political  affairs. 
The  Cardinals  ought  to  be  elected  provincial  deputies  forming  an 
Estate  and  constituting  in  some  sort  the  aristocratic  Upper  House  of 
a  parhamentarily  organized  Spiritual  Polity. 
Corpora-  242.  Hostiensis,  Johannes  Andreae  (c.  34,  X.  i,  6,  nr.  25)  and 
and  others  opined  that  the  Prince  Electors  made  the  choice  as  indivi- 

Imperial    duals,  '  ut  singuli.'  Lup.  Bebenb.  c.  6,  pp.  356 — 8,  and  c.  12,  pp.  379 

Elections.         „  ^  ^  ^  ^  •  r  • 

— 80,  argues  that  much  rather  they  are  representatives  of  an  umver- 
sitas,  and  must  themselves  meet  'tanquam  collegium  seu  universitas' 
and  make  the  choice  commu?nter.  Therefore  he  would  here  apply 
the  principle  of  the  *ius  gentium,  civile  et  canonicum'  which  teaches 
that  an  election  made  by  an  absolute  majority  is  '  electio  iuris  inter- 
pretatione  concors '  and  exactly  equivalent  to  an  unanimous  election. 
So  too  Zabarella  (c.  34  §  verum,  X.  i,  6,  nr.  8)  who  cites  Leopold  :  in 
all  respects  the  same  procedure  should  be  observed  as  'in  aliis 
actibus  universitatum' :  thus,  e.g.,  the  requirement  of  the  presence 
of  two-thirds  of  the  members,  the  preclusion  of  those  who  do  not 
attend,  and  so  forth.  Comp.  also  Cons.  154,  nr.  6.  Felinus,  c.  6, 
X.  I,  2,  nr.  29.  Bertach.  Rep.  v.  maior  pars,  nr.  27.  Petrus  de 
Andlo,  II.  c.  I — 4,  treats  the  Election  of  an  Emperor  at  great  length, 
and  in  detail  subjects  it  to  Roman  and  canonical  rules  for  the 
election  of  prelates  which  are  stated  by  Johannes  Andreae,  Antonius 
de  Butrio,  Johannes  de  Anania,  Baldus  and  Panormitanus.  Thus 
it  is  in  the  matter  of  summons  and  presidency,  form  of  scrutiny, 
decision  with  absolute  majority,  accessio,  self-election ;  so  also  in  the 
matter  of  the  demand  for  and  grant  of  examination  and  approbation 
on  the  part  of  the  Pope,  and  the  devolution  or  lapse  of  the  election 
to  the  Pope ;  and  so  again  as  to  the  requirement  of  an  actus  commu- 
nis, the  right  of  objection  of  unus  contemptus,  the  privation  of  scienter 
eligentes  indignum.  For  he  opines  that  '  these  Electors  have  suc- 
ceeded to  the  place  of  the  Roman  People,  who  ut  universitas  elected 
an  Emperor,  and  so  the  Electors  must  be  conceived  to  act  in  the 

don^Law    ^^"^^  right  [i.e.  ut  universitas\  since  a  surrogate  savours  of  the 

and  Papal  nature  of  him  whose  surrogate  he  is.' 

Elections.  243.  See  Innoc,  Host.,  Ant.  Butr.,  Zabar.,  Panorm.,  Dec.  on 
Universal  c.  6,  X.  I,  6  ;  Aug.  Triumph,  i.  q.  3 ;  Alv.  Pel.  i.  a.  i ;  Ludov.  Rom. 
Church  Cons.  498,  nr.  i — 22  (applying  the  whole  of  the  law  about  decu- 
Particular  ^^ions);  Ant.  Ros.  II.  c.  8 — 10;  Bertach.  v.  gesta  a  maiori parte. 
Churches  244.  [Dr  Gierke  here  refers  to  other  parts  of  his  work  where  he 
poratix)ns.  -^^^  ^^^^^  ^^^^      Canonists'  conception  of  every  church  as  a  corpus ?\ 


Notes. 


171 


241;.    Baldus  s.  pac.  Const,  v.  imp.  clem.  nr.  4  :  the  Emperor,  . 

....         ,    .  .       .  Empire 

Baldus  explains,  is  speaking  '  de  ista  magna  universitate,  quae  omnes  or  State 

fideles  imperii  in  se  complectitur  tam  praesentis  aetatis  quam  succes-     a  Cor- 
.     .   ,  1  r  poration. 

sivae  posteritatis.     Prooem.  teud.  nr.  32  :  non  potest  rex  facere 

deteriorem  conditionem  universitatis,  i.e.  regni.  Ruhr.  C.  10,  i,  nr. 
II  :  Respublica  as  an  'Object'  means  publica  res,  as  a  'Subject' 
ipsa  universitas  gentium  quae  rempublicam  facit.  Zabar.  c.  13,  X.  5, 
31,  nr.  I — 7  brings  in  the  learning  of  Corporations,  defines  coi'pus  or 
collegium  as  'collectio  corporum  rationabilium  constituens  unum 
corpus  repraesentativum,'  distinguishes  'collegia  surgentia  naturaliter,' 
which  so  soon  as  they  have  come  into  being  are  also  '  necessaria,' 
and  'collegia  mere  voluntaria';  in  the  former  class  he  reckons  com- 
munes, provinces  and  realms,  and  therefore  brings  in  at  this  point  the 
learning  of  the  six  Aristotelian  forms  of  government,  and  the  doctrine 
of  the  World-Monarchies  and  their  relation  to  the  Church. 

246.  Baldus,  Cons.  iii.  c.  159.    Comp.  ib.  c.  371,  and  i.  c.  326  Perpetuity 
— 327  and  c.  271  (respublica  et  fiscus  sunt  quid  aeternum  et  per- g^^j.^^ 
petuum  quantum  ad  essentiam,  licet  disponens  saepe  mutetur). 
Comp.  also  Jason,  Cons.  iii.  c.  10,  where  in  nr.  14  we  already  meet 

the  phrase  '  conventio  facta  in  utilitatem  Status.' 

247.  Baldus,  Rubr.  C.  10,  i,  nr.  15 — 16. 

248.  See  above,  Notes  212  and  218 — 20;  also  190  and  206. 

249.  See  above,  Notes  213 — 7. 

250.  See  above.  Note  118. 

251.  See  above,  Notes  221 — 231. 

252.  Expressly  d'Ailly,  Gerson  (De  pot.  eccl.  c.  10)  and  Mere  Col- 
Nicholas  of  Cues  (11.  34)  vest  all  the  rights  of  the  Church  in  the  jn^Jhe^"^ 

'  omnes  collective  sumpti.'  But  also  Marsilius,  Randuf  and  others  Concept 
leave  no  room  for  doubt  that  for  them  the  Church,  considered  as  the  chm-ch. 
Congregation  of  the  Faithful,  is  coincident  with  the  sum  of  indi- 
viduals. And  if  Ockham  in  one  passage  (Octo  q.  i.  c.  11)  names 
as  the  receiver  of  the  divine  mandate  the  '  persona  communitatis  fide- 
lium/  still  his  whole  system,  as  set  forth  above,  and  most  unambigu- 
ously his  discussion  of  the  whereabouts  of  the  Church's  infallibility, 
prove  that  he  is  not  thinking  of  a  single  personality  which  comes  to 
light  in  organization,  but  of  a  personified  collective  unit.  See  above, 
Notes  i88  and  208. 

253.  Turrecrem.  De  pot.  pap.  c.  71 — 72:  where  the  power  of  the  The 
keys  is  ascribed  to  '  the  Church,'  this  means  in  truth  that  she  has  it  ^^^"^ 
in  some  of  her  members  and  the  whole  of  it  only  in  her  head.  '  Subject ' 

254.  See  in  particular  Nic.  Cus.  as  above  in  Note  171,  also  iii.  of  Rights, 
c.  4  (vice  omnium),  12  and  25;  Mars.  Pat.  1.  c.  12 — 13;  Lup- People  a 


172  Political  Theories  of  the  Middle  Age. 


Collective 
Unit. 


The  Law 
of  Nature 
and  the 
Essence 
of  Law. 


Bebenb.  c.  5—6 ;  Ockham,  Dial.  i.  6,  c.  84 ;  Patric.  Sen.  De  inst. 
reip.  I.  I,  5  (multitudo  universa  potestatem  habet  collecta  in  unum,... 
dimissi  autem  singuli  rem  suam  agunt). 

255.  See  above,  Notes  215 — 8,  228,  230,  232 — 42. 

256.  That  there  was  a  Law  of  Nature  was  not  doubted,  nor  that 
it  flowed  from  a  source  superior  to  the  human  lawgiver  and  so  was 
absolutely  binding  upon  him.  Such  was  the  case  whatever  solution 
might  be  found  for  that  deep -reaching  question  of  scholastic  contro- 
versy which  asks  whether  the  essence  of  Law  is  Will  or  Reason.  In 
any  case  God  Himself  appeared  as  being  the  ultimate  cause  of 
Natural  Law.  This  was  so,  if,  with  Ockham,  Gerson  and  d'Ailly^ 
men  saw  in  Natural  Law  a  Command  proceeding  from  the  Will  of 
God,  which  Command  therefore  was  righteous  and  binding.  It  was 
so,  if,  with  Hugh  de  St  Victor,  Gabriel  Biel  and  Almain,  they  placed 
the  constitutive  moment  of  the  Law  of  Nature  in  the  Being  of  God, 
but  discovered  dictates  of  Eternal  Reason  declaring  what  is  right, 
which  dictates  were  unalterable  even  by  God  himself.  Lastly,  it  was 
so,  if,  with  Aquinas  and  his  followers,  they  (on  the  one  hand)  derived 
the  content  of  the  Law  of  Nature  from  the  Reason  that  is  immanent 
in  the  Being  of  God  and  is  directly  determined  by  that  Natura 
Rerum  which  is  comprised  in  God  Himself,  but  (on  the  other  hand) 
traced  the  binding  force  of  this  Law  to  God's  Will.  Aquinas 
(Summa  Theol.  11.  i,  q.  90 — 92),  when  he  has  discussed  the  nature, 
kinds  and  operations  of  a  Lex  in  general,  and  has  defined  it  (q.  90, 
a.  4)  as  'quaedam  rationis  ordinatio  ad  bonum  commune,  et  ab  eo, 
qui  curam  communitatis  habet,  promulgata,'  proceeds  to  put  at  the 
head  of  his  Philosophy  of  Law  the  idea  of  Lex  Aeterna.  And  this, 
he  says,  as  being  'ipsa  ratio  gubernationis  rerum  in  Deo  sicut  in 
Principe  universitatis  existens,'  and  '  summa  ratio  in  Deo  existens,'  is 
identical  with  the  Being  of  God  {no7i  aliiid  a  Deo),  but  at  the  same 
time  is  a  true  Lex,  absolutely  binding,  and  the  source  of  every  other 
Lex  (omnis  lex  a  lege  aeterna  derivatur);  1.  c.  q.  91,  a.  i,  q.  93,  a.  i — 6. 
Immediately  from  this  he  derives  the  Lex  Naturalis  which  is  grounded 
in  the  participation  by  Man,  as  a  reasonable  being,  in  the  moral 
order  of  the  world  (participatio  legis  aeternae  in  rationali  creatura) 
and  is  perceived  by  the  light  of  Natural  Reason  (lumen  rationis 
naturalis)  entrusted  to  us  by  God  (q.  91,  a.  2,  q.  94).  It  is  a  lex 
promulgata,  for  '  Deus  eam  mentibus  hominum  inseruit  naturaliter 
cognoscendam '  (q.  90,  a.  4) ;  it  exists  in  adu  and  not  merely  in 
/iabitu{(\.  94,  a.  i):  it  is  in  its  principles  a  true,  everywhere  identical, 
unalterable  and  indestructible  rule  for  all  actions  (q.  94,  a.  3 — 6). 

[Dr  Gierke  here  cites  a  note  in  his  tract  on  Johannes  Althusius 


Notes. 


173 


(p.  73)  in  which  he  has  dealt  with  the  same  matter  and  from  which 
we  take  the  following  sentences,  though  they  reach  beyond  the 
Middle  Age.] 

The  older  view,  which  is  more  especially  that  of  the  Realists, 
explained  the  Lex  Naiuralis  as  an  intellectual  act  independent  of 
Will— as  a  mere  lex  indicativa^  in  which  God  was  not  lawgiver  but  a 
teacher  working  by  means  of  Reason — in  short,  as  the  dictate  of 
Reason  as  to  what  is  right,  grounded  in  the  Being  of  God  but 
unalterable  even  by  him.  (To  this  effect  already  Hugo  de  S.  Victore 
Saxo,  in  the  days  of  Calixtus  II.  and  Henry  V.,  Opera  omnia,  Mog. 
161 7,  III.  p.  385,  de  sacramentis  i.  p.  6,  c.  6 — 7;  later  Gabriel  Biel, 
Almain  and  others.)  The  opposite  opinion,  proceeding  from  pure 
Nominalism,  saw  in  the  Law  of  Nature  a  mere  divine  Command, 
which  was  right  and  binding  merely  because  God  was  the  law-giver. 
So  Ockham,  Gerson,  d'Ailly.  The  prevailing  opinion  was  of  a 
mediating  kind,  though  it  inclined  to  the  principle  of  Realism.  It 
regarded  the  substance  of  Natural  Law  as  a  judgment  touching  what 
was  right,  a  judgment  necessarily  flowing  from  the  Divine  Being  and 
unalterably  determined  by  that  Nature  of  Things  which  is  comprised 
in  God ;  howbeit,  the  binding  force  of  this  Law,  but  only  its  binding 
force,  was  traced  to  God's  Will.  Thus  Aquinas,  Caietanus,  Soto, 
Suarez.  In  like  fashions  was  decided  the  question,  What  is  the 
constitutive  element  of  Law  [or  Right]  in  general?  Most  of  the 
Schoolmen  therefore  held  that  what  makes  Law  to  be  Law  is 
'  iudicium  rationis  quod  sit  aliquid  iustum.'  So  with  even  greater 
sharpness  Soto,  De  iustitia  et  iure,  Venet.  1602  (first  in  1556),  i.  q.  i, 
a.  I,  and  Molina,  Tract,  v.  disp.  46,  §§  10 — 12.  Compare  also 
Bolognetus  (1534 — 85),  De  lege,  iure  et  aequitate,  Tr.  U.  J.  i.  289 ff. 
c.  3;  Gregorius  de  Valentia,  Commentarii  theologici,  Ingoldst.  1592, 
II.  disp.  I,  q.  I,  punct.  2.  The  opposite  party  taught  that  Law 
becomes  Law  merely  through  the  Will  that  this  or  that  shall  pass  for 
Law  and  be  binding;  or  they  laid  all  the  stress  on  a  Command 
{imperium)  given  to  subjects.  Others,  again,  declared  that  intelledus 
and  voluntas  were  equally  essential.  Only  Suarez,  who  reviews  at 
length  all  the  older  opinions,  distinguished  at  this  point  between 
Positive  Law  and  Natural  Law,  and  in  the  case  of  the  former  sees 
the  legislative  Will  (not  however  the  law-giver's  command)  as  the 
constitutive,  while  Reason  is  only  a  normative,  moment  (i.  c.  4 — 5 
and  III.  c.  20).  In  the  later  Philosophy  of  Law  the  derivation  of  all 
Law  from  Will  and  the  explanation  of  both  Natural  and  Positive 
Law  as  mere  Command  was  well-nigh  universal.  Only  Leibnitz 
(1646 — 1 7 16),  who  in  so  many  directions  went  deeper  than  his 


174  Political  Theories  of  the  Middle  Age. 


contemporaries,  and  who,  perhaps  for  this  reason,  so  often  turned 
his  eyes  backwards  towards  medieval  ways  of  thought,  disputed  this 
'Will-Theory'  with  powerful  words  directed  against  Pufendorf  and 
Cocceji.  He  denied  the  essentialness  of  the  idea  of  Compulsion  in 
the  idea  of  Law,  and  argued  that  Recht  was  prior  to  Gesetz.  '  Das 
Recht  is  nicht  Recht  weil  Gott  es  gewoUt  hat,  sondern  weil  Gott 
gerecht  ist.'  See  Opera,  ed.  Dutens,  Genev.  1768,  iv.  3,  pp.  275 — 83, 
also  p.  270  ff .  §  7  ff.  and  §  13. 

[In  another  note  Dr  Gierke  (Joh.  Althusius,  p.  74)  cites  the 
following  passage  from  the  German,  Gabriel  Biel  (ob.  1495).  In  his 
Collectorium  Sententiarum,  Tubing.  1501,  Ub.  11.  dist.  35,  q.  un., 
art.  I,  he  says :  Nam  si  per  impossibile  Deus  non  esset,  qui  est  ratio 
divina,  aut  ratio  ilia  divina  esset  errans,  adhuc  si  quis  ageret  contra 
rectam  rationem  angelicam  vel  humanam  aut  aliam  aliquam  si  qua 
esset,  peccaret.  Et  si  nulla  penitus  esset  recta  ratio,  adhuc  si  quis 
ageret  contra  id  quod  agendum  dictaret  ratio  recta  si  aliqua  esset, 
peccaret.  'Already'  Dr  Gierke  adds,  'medieval  Schoolmen  had 
hazarded  the  saying,  usually  referred  to  Grotius,  that  there  would  be 
a  Law  of  Nature,  discoverable  by  human  reason  and  absolutely 
binding,  even  if  there  were  no  God,  or  the  Deity  were  unreasonable 
or  unrighteous.'] 

Nullity  257.    Thom,  Aquin.  Sum.  Theol.  11.  i,  q.  91,  art.  2,  q.  94,  a.  i — 6, 

contra^^     q.  97,  a.  I  (the  whole  people  bound);  11.  2,  q.  57,  a.  2.  Aegid. 
vening  the  Rom.  De  reg.  princ.  iii.  2,  c.  29  :  the  rex  stands  below  the  lex 
Nature.     natiiralis.    Vincent.  Bellovac.  vii.  c.  41  ff.  and  X.  c.  87  :  ipso  iure 
non  valent  leges  quia  nulla  lex  potest  valere  contra  Deum.  Joh. 
Friburg.  11.  t.  5,  q.  204 — 6,  t.  7,  q.  43  ('leges  permittentes  usuras ' 
are  null).    Ockham,  Dial.  iii.  tr.  i,  1.  2,  c.  6,  and  tr.  2, 1.  2,  c.  26 — 8 
(as  to  Kaiser  and  Pope),  ib.  c.  29  (as  to  the  universitas  populi),  and 
tr.  2,  1.  I,  c.  30  (even  an  unanimous  decision  of  the  universitas 
mortalium  could  no't  wholly  abolish  the  Roman  Empire).  Baldus, 
I.  Feud.  I  §  3,  nr.  2  (potentius  est  ius  naturale  quam  principatus),  and 
1.  I,  Cod.  I,  I,  nr.  24  ff.  (therefore  Kaiser  and  Pope  could  not,  e.g., 
make  usury  lawful).     Gloss  on  the  Sachsensp.  i.  a.  25  and  55. 
Bened.  Capra,  Regula  10,  nr.  20 — 43  and  53  {diS  to  princeps,  papa, 
ifnperator,  populus  sen  universitas  with  iurisdidio  and  imperium). 
Felinus  Sand.  c.  7,  X.  i,  2,  nr.  19 — 25  (as  to  Pope)  and  nr.  26  ff.  (as 
X.O  ifJiperator,  princeps,  popuius  liber).    Petr.  Alliac.  in  Gers.  Op.  i. 
p.  652  ff.  Nic.  Cus.  III.  c.  5.  Ant.  Ros.  iv.  c.  2 — 14.  As  to  the  Pope, 
see  above.  Note  132,  and  as  to  the  Council,  see  Gerson  in  Note  198. 
Revealed        258.    So  in  particular  Thom.  Aquin.  Sum.  Theol.  11.  i,  q.  91, 
Law  and  j — ^         ^ — ^  .       thereafter  (q.  98 — 105)  treats  at  length  of 


Notes. 


175 


the  lex  vetus,  and  (q.  106  ff.)  of  the  lex  nova.  Comp.  Aegid.  Rom.  Natural 
De  reg.  princ.  iii.  2,  c.  24 — 9  {lex  naturalis)  and  c.  30  (lex  divina). 
Gerson,  iv.  p.  652 — 4.  See  also  the  passages  cited  in  the  last  Note, 
in  which  the  force  of  the  lex  divina  is  placed  on  a  level  with  that  of 
the  lex  naturalis,  this  principle  being  applied,  e.g.,  when  statutes  that 
permit  usury  are  pronounced  void. 

259.  See  e.g.  Thom.  Aquin.  1.  c.  q.  95,  a.  2  and  4 :  the  lex  Nature  of 
humana  carries  into  detail  the  priiicipia  legis  naturalis,  partly  as  ins  Qentium 
gentium  by  way  of  mere  conclusiones,  partly  as  ius  civile  by  way  of 
determinationes.  See  also  ib.  11.  2,  q.  57,  a.  3.    Aegid.  Rom.  iii.  c.  2, 

c.  25  and  c.  29  :  si  dicitur  legem  aliquam  positivam  esse  supra 
principantem,  hoc  non  est  ut  positiva,  sed  ut  in  ea  reservatur  virtus 
iuris  naturalis.  Lup.  Bebenb.  c.  15,  p.  401.  Ockham,  Dial.  iii.  tr. 
2,  1.  2,  c.  28 :  the  ius  gentium,  in  accordance  with  which  the  highest 
power  is  subject  to  the  common  weal,  '  non  est  imperatorum  vel 
regum  per  institutionem,  sed  solum  per  approbationem  et  observa- 
tionem.'  Baldus,  i.  Feud,  i  §  3,  nr.  2.  Hieronymus  de  Tortis,  Con- 
silium for  Florence,  nr.  25  :  Papa  et  imperator  non  sunt  supra  ius 
gentium  ;  therefore  (nr.  20 — 32)  a  papal  sentence,  if  not  preceded  by 
citation,  is  null. 

260.  Thus  Thom.  Aquin.  1.  c.  q.  94,  a.  4 — 6,  distinguishes  the  Principles 
prima  principia  of  the  lex  ?iaturalis,  which  are  everywhere  identical,  t^gcondary 
immutable,  ineradicable,  and  the  praecepta  secundaria  of  the  same  Rules  of 
lex  which  are  mutable  and,  in  consequence  of  the  depravity  of  jsJature?"  ° 
human  reason,  '  in  aliquo '  destructible.    Generally  it  is  said  that 

the  ius  naturale  is  immutable  and  can  never  be  abrogated  {tolli)  by 
the  ius  civile ;  but  that  derogation  from  it  '  quoad  quid '  is  possible, 
and  that  'ex  causa'  additions  to  and  detractions  from  it  can  be  made. 
See  Lup.  Bebenb.  c.  15,  p.  401.  Ockham,  Dial.  iii.  tr.  2,  1.  2,  c.  24. 
Gloss  on  Sachsensp.  i.  a.  55.  Anton.  Rosell.  iv.  c.  7:  the  'ius 
naturale  divinum '  is  wholly  unalterable ;  on  the  other  hand,  the 
'  ius  naturale  homini  commune  cum  animalibus '  cannot  indeed  be 
abrogated  by  the  law-giver,  but  can  '  ex  causa '  be  interpreted  and 
confined. — This  limitation  was  unavoidable,  for,  according  to 
general  opinion,  the  very  existence  of  lordship  and  ownership  implied 
a  breach  of  the  pure  Law  of  Nature,  and  even  Thomas  Aquinas, 
Sum.  Theol.  11.  2,  q.  66,  a.  2,  was  of  opinion  that  '  proprietas  possessi- 
onum  non  est  contra  ius  naturale,  sed  iuri  naturali  superadditur  per 
adinventionem  rationis  humanae.'  Compare  i.  q.  96,  a.  i — 4;  and 
K.  Summenhard,  Tr.  i.  q.  8 — 11,  who  speaks  at  length. 

261.  Anton.  Ros.  iv.  c.  2 — 6  says  that,  though  John  de  Lignano  Positive 
denies  this,  the  legists  are  all  agreed  that  though  the  ius  divimwt  ^j^j^g  ' 


1 76  Political  Theories  of  the  Middle  Age. 


the^Law    cannot  be  abrogated  {tolli)  it  can  be  distinguished,  limited  and 

restrained  in  proper  cases,  and  that  additions  can  be  made  to  it ; 

but  this  holds  good  only  of  such  ius  divimim  as  is  not  de  necessitate. 

Comp.  Ockham,  Dial.  iii.  tr.  2,  1.  2,  c.  24.    Such  hmitations  become 

all  the  more  necessary  when  men  are  beginning  to  regard  Positive 

Canon  Law  as'  ius  divinum. 

Primeval         262.    Very  usual  is  a  distinction  between  the  'ius  gentium 

Secondary  primaevum '  which  has  existed  ever  since  men  were  in  their  original 

Ius  condition  and  the  '  ius  gentium  secundarium '  which  is  of  later 

growth.    According  to  Anton.  Rosell.  iv.  c.  7,  the  law  giver  can  not 

abrogate,  though  he  may  interpret,  the  former,  while  the  latter  he 

may  abrogate  "ex  causa.' 

Mutability       263.    Thom.  Aquin.  Sum.  Theol.  11.  i,  q.  90,  a.  2  and  3,  q.  91, 

Law?^^^^^^  a.  3,  q.  95,  a.  2,  q.  96,  a.  5  :  but  he  maintains  that  a  law  has  a  vis 

directiva  for  the  legislator  who  made  it.    Also  q.  97,  a.  i — 4.  Aegid. 

Rom.  De  reg.  princ.  iii.  2,-c.  24,  26 — 28,  31  :  already  we  see  here 

a  comparison  between  law  and  language ;  like  language,  the  lex 

positiva  varies  according  to  '  consuetude,  tempus,  patria  et  mores 

illius  gentis.'    Mars.  Pat.  i.  c.  12 — 13  :  a  quite  modern  definition  of 

a  law  as  the  expressly  declared  will  of  a  sovereign  community.  Patric. 

Sen.  De  inst.  reip.  i.  5. 

The  264.    Thorn.  Aquin.  1.  c.  q.  90,  a.  3,  q.  97,  a.  3  ;  also  Comm.  ad 

Prince  and  -r.  t  oat-.  ^  i 

Positive     i^oht.  p.  477,  491,  499,  518.    Aeg.  Rom.  III.  2,  c.  29:  'positiva  lex 

Law.        est  infra  principantem  sicut  lex  naturalis  est  supra';  the  Prince  stands 

in  the  middle  between  Natural  Law  and  Positive ;  the  latter  receives 

its  auctoritas  from  him  and  he  must  adapt  it  to  the  particular  case. 

Ptol.  Luc.  II.  c.  8,  III.  c.  8  and  iv.  c.  i  :  the  essential  difference 

between  the  pri?icipatus  regalis  and  the  principatus  politicus  lies  in 

this,  that  the  latter  is  a  responsible  government  according  to  the  laws, 

while  in  the  former  the  lex  is  'in  pectore  regentis,'  wherefore  he  can 

at  any  time  produce  as  law  from  this  living  fount  whatever  seems 

expedient  to  him.    Engelb.  Volk.  i.  c.  10 — 11  :   the  rex  as  lex 

animata ;  and  such  a  lex,  since  it  can  suit  itself  to  the  concrete  case, 

is  better  than  a  lex  i?ianimata.    Joh.  Saresb.  iv.  c.  2.  Ockham, 

Dial.  III.  tr.  i,  1.  2,  c.  6.    Petr.  de  Andlo,  i.  c.  8. 

Potestas  265.    As  to  the  Pope,  see  Boniface  VIIL  in  c.  i  in  Sexto  i,  2 

sofu^a^      (qui  iura  omnia  in  scrinio  pectoris  censetur  habere);  Aug.  Triumph. 

I.  q.  22,  a.  I  ;  Alv.  Pel.  i.  a.  58;  LaeHus  in  Gold.  11.  p.  1595  ff. ; 

Aen.  Sylv.  a.  1457  (Voigt,  11.  p.  240  ff.);  Nic.  Cus.  after  his  change 

of  opinion  (Op.  825  ff.).    Then  as  to  the  Emperor,  see  the  doctrine 

of  all  civilians;  the  theories  of  the  Hohenstaufen ;  Frederick  L  in 

Otto  Fris.  III.  16  and  iv.  4;  Wezel,  1.  c;   Ep.  Freder.  IL  in  ann. 


Notes. 


177 


1244  cind  1245  in  Huillard,  Hist.  dipl.  Frid.  11.  vol.  vi.  pp.  217,  258, 
and  Pet.  de  Vin.  Ep.  11.  c.  8  (quamquam  enim  Serenitati  nostrae... 
subiaceat  omne  quod  volumus  etc.);  iii.  c.  9,  v.  c.  i  ff. ;  Hofler, 
p.  70  ff. ;  Ficker,  11.  pp.  495,  539  ff.,  554  ff. ;  Gloss  on  Sachsensp.  i. 
a.  I,  III.  a.  52 — 54,  64,  Lehnrecht,  a.  4 ;  the  summary  in  Ockham, 
Dial.  III.  tr.  2,  1.  2,  c.  26  and  tr.  i,  1.  2,  c.  6 ;  Aen.  Sylv.  praef.  and 
c.  19 — 21  ;  Petr.  de  Andlo,  11.  c.  8  (but  how  does  this  agree  with  the 
doctrine,  11.  c.  10,  that  the  Emperor  can  be  tried  by  the  Palsgrave?). 

266.  Comp.  Thorn.  Aq.,  Ptol.  Luc,  Engelb.  Volk.,  Ockham,  Only  in  a 
Petr.  de  Andlo,  as  above  in  Note  264.    Aegid.  Rom.  iii.  2,  c.  2  :  it  ^^^he^^^^ 
is  so  in  the  Italian  towns,  where  despite  the  existence  of  a  Lord  Ruler 
{dominus)  or  Podesta  {potestas),  '  totus  populus  magis  dominatur,'  lIws.  ^ 
since  the  People  makes  statutes  'quae  non  licet  dominum  transgredi.' 

Pat.  Sen.  De  inst.  reip.  i.  5  (lex  tantum  dominatur)  and  iii.  i  (the 
Magistrates  rule  over  the  People  and  the  Laws  over  the  Magistrates). 

267.  See  above  Notes  159,  166,  169 — 71,  186 — 7,  200.    Most  The  Ruler 
decisively  Mars.  Patav.  i.  c.  7  — 11,  14 — 15  and  18;  with  him  the  jJ^'J'^^^.^^^j^^g 
'legislator'  is  in  all  cases  the  People,  and  the  'principans'  is  bound  by  Laws, 
the  'forma  sibi  tradita  a  legislatore.'    Nicol.  Cus.  11.  c.  9 — 10  and 

20,  III.  praef.  and  c.  41  :  all  the  binding  force  of  the  laws  rests  on 
the  will  of  the  whole  community ;  the  Pope  is  bound  by  the 
'canones,'  the  Emperor  by  the  'leges  imperiales,'  and  the  laws  are 
to  allow  for  governmental  and  judicial  acts  a  no  wider  field  of 
activity  than  is  absolutely  necessary.  Gregor.  Heimb.  11.  p.  1604  ff. 
Comp.  Ockham,  Dial.  iii.  tr,  i,  1.  2,  c.  6:  he  remarks  that  perhaps 
in  the  whole  world  there  is  no  instance  of  a  regal  form  of  government 
in  the  sense  of  a  lordship  unrestrained  by  laws,  and  that  such  a  form 
would  not  deserve  approbation  except  in  the  case,  never  found  in 
practice,  of  an  absolutely  virtuous  ruler.  With  this  Aquinas  agrees  in 
so  far  that  he  prefers  a  monarchy  limited  by  law. — Naturally  those 
who  advocated  the  supremacy  of  the  laws  appealed  at  this  point  to 
the  '  lex  digjia'  In  that  text  their  opponents  saw  no  more  than  that 
a  purely  voluntary  observance  of  the  laws  on  the  part  of  the  Princeps 
was  promised  by  him  as  a  praiseworthy  practice.  [This  famous  text 
(1.  4,  Cod.  I,  14)  runs  thus  :  Digna  vox  maiestate  regnantis  legibus 
alligatum  se  principem  profiteri.] 

268.  In  particular  Mars.  Pat.  i.  c.  11,  14,  15  and  18  and  Nic.  The 
Cus.  develop  modern  thoughts  at  this  point.    It  is  to  be  observed,  st^atsidee  ' 
however,  that  all  the  writers  mentioned  in  Note  266  suppose  that  in 

a  Republic  there  will  be  a  separation  of  legislative  from  executive 
power,  such  as  they  do  not  allow  in  a  Monarchy,  and  thereby  they 
make  this  separation  the  distinguishing  trait  of  a  Republic.  [The 


lyS  Political  Theories  of  the  Middle  Age. 


Omnia 
Principis 
esseintelli 
guntur. 

Eminent 
Domain. 


translator  of  these  pages  believes  that  in  German  controversy  the 

common  contrast  to  the  Rechtsstaat  has  been  the  Beamtenstaat. 

Perhaps  the  nearest  English  equivalent  for  the  former  term  would  be 

the  Reign  of  Law.    But  not  all  theorists  would  allow  that  the  Reign 

of  I.aw  exists  in  England  where  the  State  or  Crown  cannot  be  made 

to  answer  in  Court  for  its  wrongful  acts.] 

Popular  269.    In  relation  to  the  Assembly  of  the  People,  this  comes  out 

Asseni-  most  plainly  in  the  doctrine  of  Marsilius.  In  relation  to  the  General 
blies  above  \  ^ 

the  Laws.  Council  of  the  Church  the  freedom  from  the  restraints  of  Positive 
(canon)  Law  comes  out  in  the  doctrine  of  Epieikia  which  finds 
its  clearest  expression  in  Henr.  de  Langenstein,  Cons.  pac.  c.  15, 
Randuf,  De  mod.  un.  c.  5  (Gerson,  Op.  11.  p.  166)  and  in  particular 
Gerson,  De  unit.  eccl.  (ib.  p.  115,  also  p.  241  and  276). 

270.  See  the  statement  and  refutation  of  this  doctrine  in  Georg 
Meyer,  Das  Recht  der  Expropriation,  Leipz.  1868,  p.  86  ff. 

271.  See  Accursius  in  Gl.  on  1.  3,  Cod.  7,  37,  v.  omnia priticipis 
and  1.  2,  Dig.  de  rer.  div.  v.  littora  (the  Princeps  has  iurisdictio  vel 
protectio  not  proprietas).  Jac.  Aren.  Dig.  prooem.  nr.  i — 7.  And. 
Is.  II.  Feud.  40,  nr.  27 — 29.  Bart.  Const,  i.  Dig.  pr.  nr.  3;  1.  4,  Dig. 
50,  9,  nr.  12;  1.  6,  Dig.  50,  12:  throughout  a  distinction  is  maintained 
between  'dominium  mundi  ratione  iurisdictionis  et  gubernationis'  and 
'dominium  ratione  proprietatis.'  Baldus,  1.  2,  Dig.  de  rer.  div.,  Const. 
I.  Dig.  pr.  nr.  10 — 11  :  a  double  'dominium'  in  '  singulae  res,'  but 
'diversa  ratione':  ius  publicum  Caesaris,  privatum  privatarum  perso- 
narum.  Baldus,  11.  Feud.  51,  pr.  nr.  i — 4:  territorial  lordship  and 
ownership  distinguished  in  the  case  of  a  city  that  has  been  given  away 
or  has  subjected  itself.  See  also  Alv.  Pel.  11.  a.  15  {adininistraiio 
contrasted  with  dominium)  and  a.  57  and  63  (Christ  had  no  doniinium 
particulare,  but  he  had  dominium  gener ale).  Ockham,  Dial.  iii.  tr.  2, 
1.  2,  c.  21 — 25,  discusses  all  opinions  at  some  length.  He  rejects 
both  that  which  asserts  and  that  which  denies  that  the  Emperor  is 
'dominus  omnium  temporahum,'  and  teaches  the  mediating  doctrine 
of  a  '  dominium  quodammodo '  vested  in  him  by  conveyance  from 
the  People.  This  is  evidently  the  '  dominium  eminens  '  of  later  times, 
for,  on  the  one  hand,  it  is  a  '  dominium,'  though  '  minus  pingue,'  and 
yet  is  compatible  with  the  ownership  of  the  '  res  privatorum'  by  private 
individuals  and  with  the  ownership  of  the  'res  nullius'  by  the  'totum 
genus  humanum.'  Somn.  Virid.  11.  c.  23 — 30  and  366:  'dominium 
universale '  of  Emperor  and  Pope  contrasted  with  '  dominium  appro- 
priatius  et  specialius'  of  individuals.  Ant.  Ros.  i.  c.  70.  Petr.  de 
Andlo,  II.  c.  8.  Almain,  Expos,  ad  q.  i.  c.  6,  and  11.  c.  2.  Decius, 
Cons.  538,  nr.  8 — 11  :  in  the  case  of  every  City,  as  well  as  in  the 
case  of  the  Emperor,  we  must  distinguish  '  iurisdictio  et  imperium ' 


Notes. 


179 


over  the  *  districtus  et  territorium,'  which  is  a  '  superioritas  coerci- 
tionis,'  from  'proprietas  et  dominium';  for  'proprietas  et  imperium 
nulla  societate  coniunguntur.' 

272.  See  the  work  of  Georg  Meyer,  as  above  in  Note  270.  The  Right 
[Dr  Gierke  remarks  that  his  own  notes  on  this  subject,  which  had  priatiin?' 
already  appeared  in  his  tract  on  Althusius,  are  supplemental  to  the 
learning  collected  by  Meyer.] 

273.  Accursius  in  Gl.  on  1.  3,  Dig.  i,  14,  v.  midto  magis  and  No  Expro- 
other  passages  in  G.  Meyer  p.  88;  Gloss.  Ord.  on  c.  i,  D.  22,  v.  ^^thout 
iniustitiam ;  Jac.  Arena,  Dig.  prooem.  nr.  i — 7  ;  And.  Isern.  11.  Just 
Feud.  40,  nr.  27 — 29;  Host.  Summa  de  rescript,  nr.  11  ff.;  Oldradus,  absolute 
Cons.  224  and  257  ;  Bart.  1.  4,  Dig.  50,  9,  1.  6,  Dig.  50,  12,  1.  6,  Rule  of 
Cod.  I,  22  and  Const,  i.  Dig.  pr.  nr.  4 — 6  (neither  rescribendo  nor 

yet  legem  condendo);  Raphael  Fulgosius,  Cons.  6,  nr.  46 — 47,  Cons. 
21,  nr.  12  and  28;  Paul.  Castr.  1.  23,  Dig.  41,  2,  1.  6,  Cod.  i,  22, 
Const.  1.  c.  229;  Jason,  1.  3,  Dig.  i,  14,  nr.  24 — 34  and  Const,  iii. 
c.  86,  nr.  14;  Anton.  Butr.  c.  6,  X.  i,  2,  nr.  20 — 22  ;  Panorm.  eod. 
c.  nr.  6;  Bologninus,  Cons.  58;  Alex.  Tart.  Cons.  11.  c.  190  (esp. 
nr.  13)  and  c.  226,  nr.  18;  Franc.  Curtius  sen.  Cons.  20,  49,  50,  60; 
Christof.  de  Castellione,  Cons.  8,  nr.  16 — 18;  J  oh.  Crottus,  Cons. 

II.  c.  156,  nr.  28 — 44;  Ant.  Ros.  iv.  c.  8  and  10.    Ockham,  Dial. 

III.  tr.  2,  1.  2,  c.  23 — 5  mentions  as  an  outcome  of  the  '  domi- 
nium quodammodo'  which  he  allows  to  the  Emperor,  a  right  to 
quash  or  appropriate  to  himself  or  transfer  private  ownership,  and  to 
forbid  the  occupation  of  'res  nullius'  ;  but  such  acts  as  these  are  not 
to  be  done  'ad  libitum '  but  only  '  ex  causa  et  pro  communi  utilitate^ 
in  so  far  as  general  utility  is  to  be  preferred  to  'privata  utilitas.* 
And  at  the  same  time  it  is  Ockham  who  most  emphatically  teaches 
(ib.  c.  27)  that  this  is  not  merely  a  limit  set  to  the  power  of  the 
Monarch  but  a  limit  set  to  the  power  of  the  State  itself ;  for,  accord- 
ing to  him,  the  Hmitation  of  imperial  rights  by  the  rights  of  individuals 
rests  upon  the  fact  that  the  Populus,  which  transferred  its  power  to 
the  Prmceps,  had  itself  no  unbounded  power,  but  (in  accordance  with 
c.  6,  X.  I,  2)  was  entitled  to  invade  the  sphere  of  private  rights  by  the 
resolutions  of  a  majority  only,  at  the  call  of  necessity  {de  necessitate). 

274.  To  this  effect,  despite  a  strong  tendency  towards  abso- No  Expro- 
lutism,  Jacob.  Buttrig.  1.  2,  Cod.  i,  19;  Alber.  Rose.  Const,  i.  Dig.  v.  without 
omnis,  nr.  5  fif . ;  1.  15,  Dig.  6,  i;  1.  2,  Cod.  i,  19;  Baldus,  Const,  i.  Just 

Dig.  pr.  nr.  11  ;  1.  7,  Cod.  i,  19  ;  1.  6,  Cod.  i,  22  ;  1.  3,  Cod.  7,  37.  ^  good' 
For  some  intermediate  opinions  see  Felinus  Sandaeus  c.  7,  X.  i,  2,  general 
nr.  26 — 45  ;  Decius  eod.  c.  nr.  19 — 24  and  Cons.  191,  198,  269,  nr. 
4— 5j  271,  nr.  3,  352,  nr.  i,  357,  nr.  3,  361,  nr.  7,  250,  nr.  5—6,  588, 

12 — 2 


i8o  Political  Theories  of  the  Middle  Age. 


606,  nr.  8,  699,  nr.  8 ;  Riminald.  Cons.  i.  c.  73.    Ludov.  Rom. 

Cons.  310  (a  just  cause  necessary  in  case  of  a  *  lex  specialis '  but  not 

in  case  of  a  'lex  universalis');  Bened.  Capra,  Reg.  10,  nr.  30  ff, 

Compen-         275.    As  to  the  fluctuations  of  the  Glossa  Ordinaria,  see  Meyer, 

the  Expro-  °P'       P*     — decidedly  in  favour  of  compensation  are  Baldus, 

priated.     1.  2,  Cod.  7,  13;  Decius,  1.  II,  Dig.  de  Reg.  lur.  and  Cons.  520 

(recompensatio) ;  Jason,  1.  3,  Dig.  i,  14  and  Cons.  iii.  c.  92,  nr.  11  (si 

causa  cessat  debet  res  ilia  restitui  si  potest) ;  Paul.  Castr.  1.  5  §  1 1,  Dig. 

39,  I,  nr.  4,  1,  10,  Cod.  i,  2,  nr.  3;  Lud.  Rom.  Cons.  310,  nr.  4; 

Bertach.  Rep.  v.  civitas,  nr.  88  and  96 ;  Fel.  Sand.  c.  6,  X.  i,  2,  nr.  2 

and  c.  7,  eod.  nr.  28 — 29.    Aeneas  Sylvius,  c.  18  (if  practicable,  'ex 

publico  compensandum  est');  Crottus,  Cons.  11.  c.  156,  nr.  27  (princeps 

propter  favorem  publicum  si  auferat  dominium  alicui,  debet  pretium 

solvere)  nr.  28 — 29  (expropriatory  acts  of  towns),  nr.  31  (the  Pope). — 

On  the  other  side,  Alber.  Rose.  1.  14  §  i,  Dig.  8.  6. 

No  Com-        276.    Decius,  Cons.  520:  a  law  may  take  away  rierhts  'genera- 

pensation  ,  .  .  .  ,  ,  , 

in  case  of  hter  even  'sme  compensatione  pnvatorum  ;  on  the  other  hand,  if  the 

General  does  this  '  particulariter  alicui  subdito '  then  it  must  be  '  cum 

priatory     recompensatione.'    Jason,  1.  3,  Dig.  i,  14,  nr.  44;  Pans  de  Puteo, 

Law.        j)g  synd.  p.  41,  nr.  24  and  Ant.  Ros.  iv.  c.  8  and  10. 

No  Com-        277.    So,  e.g.,  Aen.  Sylv.  c.  17 — 18  :  in  case  'reipublicae  neces- 

P^^^Q^gg^f  sitas  id  expostulat,'  though  'aliquibus  fortasse  durum  videbitur  et 

Necessity,  absurdum.' 

Proprie-  278.  Thus  already  the  Glos.  Ord.  on  1.  2,  Cod.  i,  19,  and  1.  6, 
jM-oc^?^^^  Hostiensis,  Jac.  de  Arena,  Oldradus,  Fulgosius, 

from  the  Iserna,  Bartolus,  Paul.  Castrensis,  Jason,  Ockham,  as  in  Note  273; 
tlunP^"  also,  but  with  less  protection  for  property,  Rosciate,  Baldus,  Decius 
and  Bened.  Capra,  as  in  Note  274.  See  also  Joh.  Paris,  c.  7,  where 
private  ownership  is  placed  outside  the  sphere  of  the  Public  Power, 
temporal  and  spiritual,  by  the  more  specific  argument  that  such  owner- 
ship originates  in  the  labour  of  an  individual  and  thus  is  a  right  that 
arises  without  any  relation  to  the  connexion  between  men  or  to  the 
existence  of  a  society  with  a  common  head  (commune  caput).  Paris 
de  Puteo,  De  synd.  p.  41,  nr.  22 — 24;  Somn.  Virid.  i.  c.  156 — 161  ; 
Bertach.  v.  plenitudo  potestatis ;  Pet.  de  Andlo,  11.  c.  8 ;  Gerson,  iv. 
p.  598;  Ant.  Ros.  IV.  c.  8  and  10  (the  source  of  private  property  is  ius 
gentium,  but  ius  gentium  secundarium,  and  so  it  is  destructible). — 
When  the  objection  was  raised  that  it  was  only  Property  as  an 
institution  that  existed  ex  iure gentium,  and  that  this  was  not  infringed 
if  particular  owners  were  robbed,  the  reply  was  that  the  distinctio 
donmiorum  and  the  permanent  establishment  of  certain  modes  of 
acquisition  were  attributable  to  the  ius  gentium. 


Notes. 


i8i 


279.  Baldus  I.  Feud.  7  (God  subjected  the  laws,  but  not  con-  Sacred- 
tracts,  to  the  Emperor);  Ludov.  Rom.  Cons.  352,  nr.   15 — 25 ;  ^^^^^^^^^^ 
Christof.  Castell.  Cons.  8,  nr.  25  ;  Jason,  Cons.  i.  c.  i  and  c.  56, 11.  c.  made  by 
223,  nr.  16  ff.  and  226  ;  Decius,  Cons.  184  nr.  2,  286  nr.  5,  292  nr.  8,  State. 
404  nr.  8  (for  'Deus  ipse  ex  promissione  obligator'),  528  nr,  6,  689 

nr.  7 — 27.  But,  once  more,  '  ex  iusta  causa '  breach  of  contract  is 
permissible:  Jason,  Cons.  i.  c.  i,  nr.  12  and  29  ff.,  11.  226,  nr.  43, 
1.  3  Dig.  I,  14,  nr.  34;  Bened.  Capra,  Reg.  10,  nr.  43  ff. ;  Ant.  Ros. 
IV.  c.  14.  Therefore  the  old  moot  question,  whether  a  city  can 
revoke  the  freedom  from  taxation  which  it  has  promised  to  a  settler, 
is  generally  answered  in  the  negative,  on  the  ground  that  such  an  act 
would  be  a  breach  of  contract ;  but  exceptions  are  allowed  '  ex  causa,' 
e.g.,  when  there  is  the  punishment  of  a  delict,  or  if  the  city's  existence 
is  at  stake;  Jason,  Cons.  i.  c.  i,  nr.  21 — 30;  Ant.  Ros.  iv.  c.  15. 

280.  Thus  the  Gloss.  Ord.  on  1.  2  Cod.  i,  19  and  1.  1  Cod.  i.  Rights 

22  holds  that  private  rights  are  suspended  if  the  ius  civile  comes  into  on"positive 

collision  with  them,  and  that  they  are  abolished  by  a  simple  rescript,  Law  are  at 
•  •  the  niGrcv 

if  the  intent  to  abolish  them  be  clearly  expressed:  but  many,  it  is  of  the 

added,  hold  that  in  the  case  last  mentioned  the  rescript  to  be  effectual  State, 
must  contain  the  clause  '  non  obstante  lege.'  Then  the  last  of  these 
opinions  is  developed  by  Hostiensis,  Paulus  Castrensis,  Jason  and 
others.  Bartolus  allows  that  private  rights  arising  ex  iure  civili  can 
be  abohshed  '  without  cause,'  but  only  by  legislation,  and  not  (unless 
the  damage  be  inconsiderable)  by  way  of  rescript.  On  the  other 
hand,  Baldus,  Decius  and  others  hold  that  such  rights  can  be  with- 
drawn unconditionally  and  in  every  form.  Innocent  IV.,  Alb.  Ros- 
ciate  and  others  think  that  the  State  cannot  take  away  the  right  of 
ownership  {do7ninium  ipsimi),  but  can  make  it  illusory  by  taking 
away  the  rights  of  action  which  flow  merely  from  Positive  Law. 
Anton.  Ros.  iii.  c.  14  and  Bened.  Capra,  Reg.  10,  nr.  43 — 52  discuss 
at  length  the  withdrawal  of  '  iura  mere  positiva.' 

281.  Jason,  Cons.  i.  c.  i,  nr.  20,  c.  56,  nr.  i,  2,  7,  8,  21,  11.  Revoca- 
c.  226,  nr.  43 — 49  :  'privileges'  granted  gratuitously  may  be  revoked  Vp^j^^ 
'sine  causa';  those  granted  for  value  'ex  causa.'    Felinus  Sand.  c.  7  leges.' 
X.  I.  2,  nr.  48 — 52  :  for  the  princeps  can  'ius  auferre^  cuius  ipse  fuit 
causa  ut  acquireretur.'    Bened.  Capra,  1.  c,  excepts  the  case  of  'non 
subiecti.'    Aen.  Sylv.  c.  15  :  privileges  may  be  revoked  if  they  be 
reipublicae  damnosa. — In  the  Disput.  inter  mil.  et  cler.  p.  686,  and 

the  Somnium  Viridarii  i.  c.  33 — 34  the  knight  already  applies  this 
doctrine  in  such  wise  that  the  State  'pro  ardua  necessitate  reipublicae 
vel  utilitate  manifesta'  can  withdraw  all  ecclesiastical  privileges, 
since  every  privilege  must  be  deemed  to  comprise  a  clause  to  the 
effect  that  it  is  not  to  impair  the  'salus  pubHca.' 


1 82  Political  Theories  of  the  Middle  Age, 


Nullity 
of  the 
'Donation 
of  Con- 
stantine.' 


Inalien- 
ability of 
Public 
Power. 


282.  See  above  Notes  2,  87,  125 — 30;  Dante,  Mon.  i.  c.  3; 
Ockham,  Dial.  iii.  tr.  2,  1.  2,  c.  28. 

283.  Already  in  the  Gloss,  on  Auth.  Coll.  i.  tit.  6,  prooem.  v. 
conferens^  there  is  a  suggestion  of  the  arguments  which  the  legists 
afterwards  developed  by  way  of  proof  that  the  Donation  of  Constan- 
tine  was  void,  because  the  imperial  power  is  inalienable  and  no 
'  expropriatio  territorii,  dignitatis  vel  iurisdictionis  '  is  possible.  For 
full  discussions  of  this  matter,  see  Bartol.  on  prooem.  Dig.  nr.  13 — 14 
and  Raldus  eod.  nr.  36 — 57,  and  prooem.  Feud.  nr.  32 — 33.  Com- 
pare Dante,  Mon.  iii.  c.  10  :  'nemini  licet  ea  facere  per  ofiftcium  sibi 
deputatum  quae  sunt  contra  illud  officium';  the  Emperor  cannot 
destroy  the  Empire,  which  exists  before  he  exists,  and  whence  he 
draws  his  imperial  rights  (ab  eo  recipiat  esse  quod  est) ;  the  seamless 
garment  would  be  rent ;  in  every  grant  or  infeudation  by  the  Emperor 
there  is  a  reservation  of  'superius  illud  dominium  cuius  unitas  divisio- 
nem  non  patitur.'  Lup.  Beb.  c.  13,  p.  391 — 3.  Quaestio  in  utram- 
que,  p.  106,  ad  14.  Ockham,  Octo  q.  i.  c.  12,  iii.  c.  9,  viii.  c.  i, 
Dial.  III.  tr.  2,  1.  i,  c.  27.  Gloss  on  Sachsensp.  iii.  a.  63.  Damasus, 
Broc.  M.  III.  br.  19.  Greg.  Heimb.  i.  p.  560.  Anton.  Ros.  i.  c.  64 
— 70  ('officium  publicum';  'imperium  indivisibile  et  inalienabile' ; 
*  corpus  mysticum';  '  ecclesia  non  capax' ;  '  populus  Romanus 
liber,  non  in  commercio'). — These  arguments  are  not  attacked  by 
the  other  party.  The  defenders  of  the  Donation  are  for  making  an 
exceptional  case  of  it.  The  gift  was  really  made  to  God  and  there- 
fore was  not  subject  to  the  ordinary  restrictions.  So  Bartolus, 
1.  c,  whose  chief  reason,  however,  is  that  he  is  teaching  in  the  papal 
territory :  so  also  Baldus  and  others.  In  particular,  however,  the 
papal  party  develop  the  doctrine  that  the  Pope  was  already  '  varus 
dominus  iure  divino,'  and  that  therefore  the  donation  bore  the 
character  of  a  '  restitutio.'  So  Innocent  IV.,  Ptol.  Luc.  iii.  c.  16; 
Alv.  Pel.  I.  a.  13  E,  43  D — E,  24  s,  56  m,  59  h,  ii.  a.  29;  Aug. 
Triumph,  i.  q.  i,  a.  i,  11.  q.  36,  a.  3,  38,  a.  i,  43,  a.  i — 3  ;  comp. 
And.  Isem.  i.  Feud,  i,  nr.  10  and  Petr.  de  Andlo  i.  c.  11,  and  11. 
c.  9. — The  opinion  that  the  whole  donation  was  a  fable  had  never 
quite  died  out  in  the  days  before  the  forgery  was  exposed  by  Nic. 
Cusanus  (iii.  c.  2)  and  Laur.  Valla  (ann.  1439  in  Schard,  p.  734 — 80). 
This  is  shewn  by  the  bold  words  of  Wezel,  ann.  1152,  in  Jaffe,  Mon. 
Corb.  p.  542,  and  the  mention  of  this  opinion  by  Lup.  Bebenb. 
c.  13. 

284.  See  above,  Note  58.  In  particular  Lupoid  von  Bebenburg 
(c.  15,  pp.  398 — 401)  in  this  context  sharply  formulates  the  general 
proposition  that  the  *  imperium,'  since  it  is  '  ob  publicum  usum 


Notes. 


183 


assignatum,'  stands  '  extra  commercium '  like  any  other  '  res  in 
publico  usu.' 

285.  Among  the  jurists  and  publicists  we  may  see  an  always  Nullity 
more  definite  apprehension  of  the  rule  that  every  contract  which  J^g^^Jn^g 
purports  to  sacrifice  an  essential  right  of  the  State  is  void,  and  that  diminish 
no  title  can  give  protection  against  that  claim  to  submission  which  p^^wer?^^  ^ 
flows  from  the  very  idea  of  State-Power.    (Compare  the  passages 

cited  in  Note  283.)  Therefore  contracts  made  by  the  Princeps  are 
not  binding  on  his  successor  if  thereby  '  monarchia  regni  et  honor 
coronae  diminui  possit,'  or  'magna  diminutio  iurisdictionis '  would 
ensue,  or  '  regalia  status '  would  be  abandoned.  See  Bart.  1.  3,  §  2, 
Dig.  43,  23,  nr.  5;  Bald.  i.  Cons.  271,  nr.  3;  Joh.  Paris,  c.  22; 
Somn.  Virid.  11.  c.  293;  Picus  a  Monte  Pico,  i.  Feud.  7,  nr.  10; 
Jason,  Cons.  iii.  c.  10,  nr.  6 — 9,  16,  24 — 25  ;  Crottus,  Cons.  11. 
c  223,  nr.  Ti  and  21 — 22;  Bertach.  v.  successor  in  regno.  So  a 
contract  by  a  city  purporting  to  exempt  a  man  from  taxation  might 
be  valid  if  entered  into  with  a  new  settler,  but  would  be  invalid  if 
made  with  one  who  was  'civis  iam  subditus':  Bart.  1.  2,  Dig.  50,  6, 
nr.  2  and  6  ;  to  the  contrary.  Gal.  Marg.  c.  30,  nr.  1 1  and  Dur.  Spec. 
IV.  3,  de  cens.  §  2,  nr.  12. 

286.  See  Notes  283 — 5.    Dante,  iii.  c.  7  :  Emperor  or  Pope,  Inalien- 
like  God,  is  powerless  in  one  point,  namely,  '  quod  sibi  similem  soverei^- 
creare  non  potest :  auctoritas  principalis  non  est  principis  nisi  ad  ty. 
usum,  quia  nuUus  princeps  seipsum  autorizare  potest.'    Aen.  Sylv. 

c.  II — 12. 

287.  Most  definitely  Nicol.  Cus.  (above.  Note  171);  but  also  An  inde- 
Mars.  Pat.  i.  c.  12  (in  the  words  '  nec  esse  possunt').    As  regards  Sove- 
the  Church,  see  above,  Notes  189  and  200.    According  to  Ockham,  ^^^^^^^ 
Dial.  III.  tr.   i,  1.  i,  c.  29,  there  were  some  who  held  that  a  People, 
renunciation  of  the  lordship  of  the  world  by  the  '  Populus  Romanus ' 

was  impossible  and  would  not  bind  the  '  populus  sequens ' ;  but  this 
opinion  is  refuted,  reference  being  made  to  the  merely  'positive' 
character  of  the  Romans'  right  to  preeminence,  and  also  to  the 
doctrine  about  the  binding  force  of  resolutions  passed  by  a  cor- 
poration. 

288.  Bart.  Ruhr.  C.  10,  i,  nr.  3 — 5  and  9 — 10.    The  idea  of  Essential 
the  Fiscus  includes  only  '  quicquid  ad  commodum  pecuniariutn  ^{^^^ 
imperii  pertinet :  aha  vero,  quae  ad  iurisdictionem  et  honores  im-  State  and 
peril  pertinent  et  non  commodum  pecuniarium  et  bursale,  continentur  acqutred 
nomine  reipublicae  et  non  fisci.'    Baldus,  11.  Feud.  51,  pr.  nr.  4 :  a  Rights  of 
city  which  subjects  itself  to  lordship  thereby  conveys  the  iurisdictio 

over  the  town  mills,  for  this  the  city  had  possessed  'sicut  ipsa 


184  Political  Theories  of  the  Middle  Age. 


civitas,'  but  it  does  not  convey  the  ownership  of  the  mills,  for  this  it 
had  'iure  privato.'  Compare  Bald.  Ruhr.  C.  10,  nr.  11,  Cons. 
I.  c.  271,  nr.  2,  but  especially  1.  i,  Cod.  4,  39,  nr.  4,  and  above  all 

1.  5,  Cod.  7,  53,  nr.  13:  a  distinction  between  'res  universitatis  in 
commercio '  and  '  extra  commercium  '  :  in  things  of  the  latter  class — 
and  to  this  class  belong  all  public  rights — '  tenuta  capi  non  potest' 
[a  tenure  cannot  be  created] ;  therefore,  e.g.,  the  right  to  impose  a 
tax  '  cum  sit  publicum  auctoritate  et  utilitate  et  sit  meri  imperii '  is 
inalienable,  and  can  never  '  privato  concedi  vel  in  tenutam  dari ' ; 
only  the  commoditas  [profit]  of  this  right  can  be  sold,  given,  let  to 
farm,  in  such  wise  that  the  'civitas  ipsa'  will  still  'impose'  the  tax, 
though  the  buyer  or  lessee  '  exacts '  it ;  also  the  city  can  appoint  for 
itself  a  capitaneus  or  conservator,  who,  as  its  proctor,  will  impose 
taxes  and  exercise  other  rights  of  ownership;  'et  sub  hoc  colore 
perdunt  civitates  suas  libertates,  quae  de  decreto  vendi  non  possunt.' 
See  further  the  separation  of  the  sovereign  rights  and  fiscal  rights  of 
the  Empire  in  Ockham,  Dial.  iii.  tr.  2,  1.  2,  c.  23  :  also  the  dis- 
tinction between  the  commodiim  pecuniarium^  which  is  involved  in 
the  idea  of  the  fiscus,  and  the  regalia  which  are  involved  in  the  idea 
of  the  respublica,  in  Vocab.  luris,  v.  fiscus,  in  Paul.  Castr.  1.  4,  Cod. 

2,  54,  Marcus,  Dec.  i.  q.  338,  nr.  8 — 10  and  17,  Martinus  Laudensis, 
De  fisco,  q.  141. 

Gradual         289.    See  the  passages  cited  above  in  Notes  284,  285  and  288. — 

apprehen-  ^  certain,  but  a  very  distant,  influence  was  exercised  at  this  point  by 

sion  of  the  .      .         1  ,      ,     t^,  ,        ,  , 

Distinc-     the  distmctions  drawn  by  the  Philosophers  between  the  various  sorts 

tion  be-  Qf  iustitia.  So,  in  particular,  the  Thomistic  distinction  between 
tween  lus       ,    ,      .      .  ,  .       .    ,  ,  .  i    •  1 

Publicum  (i)  the  lustiha  particularis,  which  is  {a)  commutative,  regulating  the 

Prfvatum   ^^^^^ionships  of  man  to  man,  or  {b)  distributive,  dividing  among 

individuals  what  is  common,  and  (2)  the  iustitia  generalis  s.  legalis, 

which  limits  the  rights  of  individuals  in  accordance  with  the  demands 

of  the  bonuin  com?7iune.    See  Thorn.  Aquin.  Sum.  Theol.  11.  2, 

q.  58  ff. ;   also  11.   i,  q.   105,  a.  2.    Also  Aegid.   Rom.  above, 

Note  83. 

Nullity  290.    So,  to  some  extent,  all  the  writers  mentioned  in  Note  257. 

of  the       And  so  in  connexion  with  attacks  on  vested  rights  made  without 
reign's      tusta  causa,  all  the  authors  named  in  Note  273  :  see  especially  Gloss. 
Acts  if      Ord.  on  1.  2,  Cod.  i,  19  and  1.  6,  Cod.  i,  22,  Host.  1.  c,  Jacob, 
flict^with    Aren.  1.  c.  (for  the  Emperor,  if  he  orders  anything  contrary  to  law. 
Natural     '  quasi  non  facit  ut  imperator '),  Raphael  Fulgosius  1.  c.  (the  opinion 
that  the  Emperor,  though  he  does  unright,  does  a  valid  act,  would 
practically  subject  everything  to  arbitrary  power).    Comp.  Bened. 
Capra,  Reg.   10,  nr.  35 — 42. — Then  Bartolus  draws,  and  others 


Notes. 


185 


accept,  the  distinction  between  invasions  of  right  (i)  legem  con- 
dendo,  (2)  iudicando,  (3)  rescribendo,  and  he  is  inchned  to  allow 
greater  force  to  an  act  of  legislation  than  to  acts  of  other  kinds ; 
still  it  is  just  he  who  expressly  declares  that  in  conflict  with  Natural 
Right,  strictly  so-called,  even  laws  are  void. — See  also  above,  Note 
259  in  fine. 

291.  See  above.  Notes  129 — 130  and  134. 

292.  This  is  the  core  of  the  doctrine  that  the  lack  of  a  iusta  Tribunals 

causa  for  any  invasion  of  vested  rights  by  the  Sovereign  can  be  ^^^^.^^Jq^ 

supplied  by  the  deliberateness  [ex  certa  scientia)  with  which  he  Acts  of  the 

exercises  his  plenitude  potestatis :  deliberateness  which  can  be  mani-  Sovereign 
c  r  if  clone  rle- 

fested  by  such  a  clause  as  '  lege  non  obstante.'  This  doctrine,  which  liberately. 

first  appears  in  a  rough  form  in  Durantis,  Speculum,  i.  tit.  interd.  leg. 
et  sedi  Apost.  reserv.  nr.  89  (cf.  G.  Meyer,  op.  cit.  p.  101),  is  attacked 
by  the  jurists  cited  in  our  Note  273  (thotigh  Jason  in  Cons.  11.  c.  233, 
c.  236,  n.  12 — 13  and  iv.  c.  107,  nr.  4,  makes  large  concessions)  and 
is  defended,  though  to  a  varying  degree,  by  the  jurists  mentioned 
in  our  Note  274.  See  in  particular  Alber.  Rose.  1.  c.  where  prac- 
tically all  difference  between  Positive  and  Natural  Right  disappears 
and  the  same  formal  omnipotence  is  claimed  both  for  rescripts  and 
for  acts  of  legislation.  Baldus,  1.  c. ;  Felin.  Sand.  1.  c.  nr.  60 — 66 
(despite  nr.  45 — 52);  Riminald.  Cons.  i.  c.  73;  Capra,  Reg.  10, 
nr.  48 — 52,  56 — 59;  Decius,  c.  7,  X.  i,  2,  nr.  27 — 28,  Cons.  198, 
nr.  7,  269,  nr.  4 — 5,  271,  nr.  3,  640,  nr.  6 — 7,  and  esp.  588,  nr.  i — 
14;  also  Aen.  Sylv.  c.  16 — 17. — The  rejection  of  the  right  of  active 
resistance  is  a  logical  consequence;  see  above,  Note  127. 

293.  This  is  made  externally  visible  by  the  treatment  as  two  dif-  Natural 

ferent  subjects  of  (i)  the  ''lex  naturalis  et  divina,'  which  is  binding  on 

^  \  '  °       reduced  to 

rulers  as  on  others,  but  like  all  other  '  leges '  is  concerned  with  the  level 

'actus  exteriores,'  and  (2)  that  Instruction  for  the  Virtuous  Prince,  in  ^SY^^^^ 
.  .  .  .  .  Ethics, 

the  development  of  which  medieval  publicists  expend  much  of  their 

pains. 

294.  Already  John  of  Salisbury,  iv.  c.  i,  2  and  4,  speaks  of  a  Coercive 

''lex  iustitiae,'  to  which  the  Ruler  remains  subject,  since  the  'aequitas  . 

.  .  Dn-ective 

et  iustitia,'  of  which  the  'lex'  is  the  'interpres,'  should  govern  his  Force  of 

will.    Then  in  Aquinas  there  comes  to  the  front  the  formula  that  the 

Prince,  in  so  far  as  the  rules  of  law  have  no  '  vis  coactiva '  against 

him,  is  still  bound  by  them  '  quantum  ad  vim  directivam ' ;  comp. 

Sum.  Theol.  11.  i,  q.  96,  a.  5,  also  q.  93,  a.  3.    With  Thomas  himself 

it  is  only  the  'lex  humana'  which  is  reduced  to  the  exercise  of  a 

merely  directive  force  over  the  Prince ;  in  this  province  unrighteous 

laws  (e.g.  those  which  proceed  '  ultra  sibi  commissam  potestatem,' 


1 86  Political  Theories  of  the  Middle  Age. 


Legal 
Limit  to 
the  Dutv 
of  Obe-' 
dience. 
Unjust 
Acts  of 
Sovereign- 
ty to  be 
inter- 
preted into 
Rightful- 
ness. 


Discharge 
of  the 
Sovereign 
from  the 
Moral 
Law. 


Natural 
Growth 
of  the 
State. 


which  impose  unjust  taxes  and  unjust  divisions  of  burdens,  or  which 
are  *  contra  commune  bonum ')  have  formally  the  force  of  laws, 
though  they  are  not  binding  'in  foro  conscientiae ' :  comp.  ib.  q.  90, 
a.  2,  and  q.  96,  a.  i — 4.  Similarly  Joh.  Friburg.  c.  11.  t.  5,  q.  204. 
On  the  other  hand,  those  who  unconditionally  maintain  the  formal 
sovereignty  of  the  legislator  and  in  so  doing  refuse  even  to  Natural 
Law  any  '  coactive  force '  against  him,  are  unanimous  in  allowing  to 
it  at  least  a  '  directive  force.'  See  also  Ptol.  Luc.  De  reg.  princ.  iv. 
c.  I.  Ockham,  Dial.  iii.  tr.  2,  1.  2,  c.  28.  Gerson,  iv.  p.  593  ff. 
esp.  601. 

295.  See  above,  Notes  127 — 8.  The  limit  to  the  duty  of 
obedience  is  steadily  represented  as  a  matter  for  Jurisprudence,  and 
is  deduced  from  the  nature  of  lex  or  ius. 

296.  See,  e.g.,  Gloss.  Ord.  on  1.  2,  Cod.  i,  19,  and  1.  i,  Cod.  i, 
22  ;  Baldus,  as  cited  in  Note  274  ;  Jason,  Cons.  11.  c.  233,  nr.  9,  iii. 
c.  24,  nr.  21,  IV.  c.  166,  nr.  9;  Franc.  Aret.  Cons.  15,  nr.  9;  Franc. 
Curt.  sen.  Cons.  20,  49,  50 ;  Domin.  Gem.  Cons.  99,  nr.  7 — 8, 
c.  104,  nr.  4;  Decius,  Cons.  292,  nr.  3  and  9,  373  nr.  10,  606  nr.  17. 
In  case  of  need  men  were  ready  to  feign  that  the  Sovereign's  act  had 
been  induced  by  subreptio,  circumventio,  etc. 

297.  For  the  benefit  of  the  omnipotent  Council,  Randuf  teaches 
that,  if  the  weal  of  the  Church  requires  it,  the  Council  may  disregard 
the  Moral  Law:  De  mod.  un.  c.  6,  16,  20  and  22  (Gerson,  Op.  11. 
pp.  170,  182,  188,  190).  Gerson  (iv.  p.  671)  protests  against  this: 
the  Law  of  Morality  must  not  be  transgressed  even  for  the  sake  of 
the  common  weal;  perjury  should  not  be  committed  even  to  save 
the  whole  people. 

298.  In  my  book  'Joh.  Althusius  und  die  Entwicklung  der 
naturrechtlichen  Staatstheorien'  I  have  submitted  just  this  side  of  the 
medieval  doctrine  to  closer  inspection,  and  have  traced  the  later 
development  of  those  germs  that  were  planted  in  the  Middle  Age. 

299.  See  above,  Notes  16,  137  and  260  i7i  fine. 

300.  See  above.  Notes  16.  138 — 9,  142 — 5. 

301.  See  above,  Notes  140 — i. 

302.  Aegid.  Rom.  De  reg.  princ.  iii.  i,  c.  6,  supposes  three 
possible  origins  of  a  State :  the  first  is  the  purely  natural  way  of  a 
gradual  growth  from  out  the  Family  ;  the  second  is  the  '  concordia 
constituentium  civitatem  vel  regnum '  and  this  is  partially  natural, 
owing  to  a  '  naturalis  impetus '  which  impels  to  this  concord ;  the 
third  is  the  way  of  mere  violence,  compulsion  and  conquest.  Marsil. 
Pat.  I.  c.  3  combines  the  thought  of  natural  increase  and  differentia- 
tion with  the  notion  of  a  creative  act  of  human  activity. 


Notes. 


187 


303.  Already  Aquinas,  however  great  may  be  the  stress  that  he  Rational 
lays  on  man's  nature  as  '  animal  politicum  et  sociale  in  multitudine  ol"he" 
vivens '  (De  reg.  princ.  i.  c.  i  and  Sum.  Theol.  i.  q.  96,  a.  4),  makes  ^tate. 
mention  of  the  '  ratio  constituens   civitatem '  (above,  Note  98). 
Comp.  Ptol.  Luc.  III.  c.  9,  and  iv.  c.  2 — 3.    Aegid.  Rom.  iii.  2, 

c.  32  says  expressly:  'sciendum  est  quod  civitas  sit  aliquo  modo 
quid  naturale,  eo  quod  naturalem  habemus  impetum  ad  civitatem 
constituendam  ;  non  tamen  efificitur  nec  perficitur  civitas  nisi  ex  opera 
et  industria  hominum'  Comp.  iii.  i,  c.  i  (opus  humanum)  with 
c.  3 — 5  (homo  est  naturaliter  animal  civile  et  civitas  aliquid  secundum 
naturam).  Engelb.  Volk.  De  ortu,  c.  i  :  ratio  imitata  naturam. 
Joh.  Paris,  c.  i.  Gerson,  iv.  p.  648.  Nic.  Cus.  iii.  praef.  Aen. 
Sylv.  c.  I,  2  and  4 :  human  reason,  '  sive  docente  natura  sive  Deo 
volente,  totius  naturae  magistro,'  invented  and  instituted  the  State, 
Lordship,  Empire.  Already  Patric.  Sen.  De  reip.  inst.  i.  3  speaks 
of  all  the  manifestations  of  social  life — living  in  company,  making 
strongholds,  language,  the  arts,  the  laws,  the  State — as  'inventions' 
to  which  mankind  'duce  naturae'  came  by  giving  thought  to  general 
utility  (de  communi  utilitate  cogitare).  According  to  iii.  5,  the  State 
may  be  so  erected  that  it  cannot  perish. 

304.  The  ecclesiastical  theory  that  the  constitutive  principle  of  The  State 
the  State  was  violence  and  compulsion  (see  above,  Note  16)  was  still  violSfce^ 
maintained  by  Ptolemy  of  Lucca,  iv.  c.  3,  and  such  an  origin  seemed 

at  least  possible  to  Aegidius  Romanus  (above,  Note  302).  On  the 
other  hand,  Aquinas  traces  the  founding  of  the  State  to  the  office  of 
the  King  (above,  Note  98). 

305.  See  Mars.  Pat.  i.  c.  15  as  to  the  'anima  universitatis  vel  The  State 

eius  valentioris  partis'  as  the  '  principium  factivum'  of  the  State  ('^""^^^^^ 
^  ^  Incorpora- 

(above,  Note  98).    And  so  in  relation  to  the  World  Empire  (above,  tion. 
Note  145). 

306.  Of  special  importance  was  the  acceptance  of  Cicero's  The  Social 
definitions  of  the  State  as  a  societas.    See,  e.g.  Thom.  Aquin.  Sum. 

Theol.  II.  I,  q.  105,  a.  1,  11.  2,  q.  42,  a.  2;  Vincent  Bellov.  vii. 
c.  6 — 7;  Dom.  Gem.  c.  17  in  Sexto,  i,  6,  nr.  7;  Randuf,  De  mod. 
un.  c.  7,  p.  171  ;  Theod.  a  Niem,  Nemus  Unionis,  tr.  v.  p.  261.  So 
also  the  acceptance,  in  c.  2  §  2  D.  8,  of  the  words  of  St  Augustine : 
'generale  quippe  pactum  est  societatis  humanae  obedire  regibus.' 
The  separation  of  the  Social  Contract  from  the  Contract  which 
institutes  the  ruler  is  suggested  by  John  of  Paris,  c.  i,  and  is 
effected  in  clear  outline  by  Aeneas  Sylvius,  who  treats  (De  ortu,  c.  i) 
of  the  grounding  of  a  societas  civilis  by  men  who  theretofore  wan- 
dered wild  in  the  woods,  and  then  (c.  2)  of  the  estaWishment  of  a 


1 88  Political  Theories  of  the  Middle  Age. 


regia  potestas  in  consequence  of  the  transgressions  of  the  Social 

Contract  that  men  were  beginning  to  commit.    See  also  Aegid. 

Rom.  above  in  Note  302  ;  Patric.  Sen.  i.  3.    [The  passages  in 

Cicero's  works  referred  to  in  this  note  are  given  by  Dr  Gierke 

elsewhere  (D.  G.  R.  iii.  p.  23).    De  off.  i.  17,  where  the  State 

appears  among  the  societates.    De  republ.  i.  25,  39  :  'populus  autem 

non  omnis  hominum  coetus  quoquo  modo  congregatus,  sed  coetus 

multitudinis  iuris  consensu  et  utilitatis  communione  sociatus';  ib.  26, 

41;  ib.  32,  49:  'lex  civilis  societatis  vinculum,  ius  autem  legis 

aequale ;  quid  enim  est  civitas  nisi  iuris  societas?';  ib.  iii.  31: 

'  neque  esset  unum  vinculum  iuris  nec  consensus  ac  societas  coetus, 

quod  est  populus^;  ib.  33;  ib.  35,  50;  ib.  iv.  3:  'civium  beate  et 

honeste  vivendi  societas';  ib.  vi.  13  (Somn.  Scip.) :  'conciUa  coetus- 

que  hominum  iure  sociati,  quae  civitates  appellantur.'    In  another 

place  Dr  Gierke  (D.  G.  R.  iii.  p.  124),  discussing  the  influence  of  the 

patristic  writmgs,  remarks  that  certain  pregnant  sentences  of  Cicero's 

long-lost  De  republica  were  known  in  the  Middle  Age  through 

Lactantius  and  Augustine  and  exercised  a  powerful  influence.  In 

yet  another  place  (D.  G.  R.  iii.' p.  125)  the  words  'generale  quippe 

pactum  est  societatis  humanae  obedire   regibus '  are   cited  from 

August.  Confess,  iii.  8 ;  but  it  is  there  remarked  that  Augustine  is 

wont  to  give  to  the  State  a  sinful  origin  in  violence.] 

Voluntary       307.    See  the  derivation  of  the  binding  force  of  laws  from  a  self- 

Subjec-  binding  of  individuals,  in  Mars.  Pat.  i.  c.  12  (lex  ilia  melius  observatur 
tion  the  ^  .         '  .  .  .  ^ 

Ground  of  a  quocumque  civmm,  quam  silu  quihbet  imposuisse  videtur  ;...hanc 

Obedi-  quilibet  sibi  statuisse  videtur  ideoque  contra  illam  reclamare  non 
ence.  ^  .  ^  . 

habet) ;  m  Ockham,  Dial.  iii.  tr.  2,  1.  2,  c.  26 — 28;  m  Nic.  Cus.  11. 

8,  10,  12  (concordantia  subiectionalis  eorum  qui  ligantur),  13  (sub- 

iectio  inferiorum),  iii.  c.  14  (per  viam  voluntariae  subiectionis  et 

consensus).  Add  to  this  the  supposition  that  the  isolated  individual  is 

historically  prior  to  the  community:  Aen.  Sylv.  1.  c,  and  Patric.  Sen.  1.  c. 

The  terms       308.    Already  Ockham,  Dial.  iii.  tr.  2,  1.  2,  c.  26,  says  that  many 

Contract    ^^^^^^  ^"^^  Emperor's  '  plenitudo  potestatis '  from  Original  Contracts, 

of  Subjec-  since  '  humana  societas  servare  tenetur  ad  quod  se  obligavit ' :  '  sed 

tion.        societas  humana  obligat  se  ad  obediendum  generaliter  regibus  et 

multo  magis  imperatori';  this  appears  from  the  words  of  Augustine 

[above,  Note  306].    Ockham  himself,  however,  opines  (c.  28  in  fine) 

that  this  pactum  secured  obedience  only  '  in  his  quae  ad  utilitatem 

comrnunem  proficiunt.'    Comp.  Aen.  Sylv.  1.  c. 

309.    See  Dante,  i.  c.  3 ;  Ockham,  Dial.  iii.  tr.  2,  1.  2,  c.  28. 

Limitation       310.    So  when  Dante  (above,  Note  6)  makes  the  institution  of 

Work  of         '  universalis  pax '  the  aim  and  object  of  the  Empire.    So  when 


Notes. 


Engelbert  of  Volkersdorf  (De  ortu,  c.  7 — 13)  finds  the  object  of  the  the  State 
State  in  the  '  feUcitas  regni,'  and,  having  mentioned  its  components,  ^;\iaimen- 
finally  (c.  14)  sums  them  all  up  in  the  one  idea  of  'pax,'  and  else-  ance  of 
where  (c.  19)  simply  identifies  the  'ordinatio  et  conservatio  pacis  et  Law^ 
iustitiae'  with  the  object  of  the  State.    So  also  when  Gerson,  iv. 
p.  649,  does  the  like.    And  so,  again,  when  Petrus  de  Andlo,  11. 
c.  16 — 18,  mentions  the  'cura  totius  reipublicae'  as  the  State's  object, 
but,  when  it  comes  to  particulars,  mentions  only  the  administration 
of  justice,  the  preservation  of  the  peace  and  the  protection  of 
religion. 

311.  See,  e.g.,  Thom.  Aquin.  De  reg.  princ.  i.  c.  14:  the  object  Final 

of  the  State  is  life  according  to  virtue  :  but  the  *  virtus  humana '  of  Causes  of 

.  .  ,  State  and 

the  '  multitudo,' which  is  to  be  reahzed  by  the  '  regimen  humanum.  Church. 

is  itself  but  means  to  that  other-worldly  purpose  which  the  Church 

has  to  promote  by  realizing  the  'virtus  divina.'    See  also  c.  7 — 15, 

and  Sum.  Theol.  11.  i,  q.  90,  a.  2.    On  the  other  hand,  in  his 

Commentary  on  the  PoHtics  he  simply  follows  Aristotle  :  see  Op.  xxi. 

pp.  307  ff.,  400,  402,  424,  469,  634  ff.,  678  ff.    Compare  Ptol.  Luc. 

III.  c.  3,  and  IV.  c.  23;  Aegid.  Rom.  iii.  i,  c.  i — 2,  iii.  2,  c.  8  and 

32;  Eng.  Volk.  De  reg.  princ.  11.  c.  2 — 4;  Anton.  Ros.  i.  c.  46 

and  56. 

312.  Joh.  Paris,  c.  18:  since  the  virtuous  life  (vivere  secundum  Extension 
virtutem)  is  the  object  of  the  State,  it  is  untrue  'quod  potestas  regalis  g^^^j^^^ 
sit  corporalis  et  non  spiritualis  et  habeat  curam  corporum  et  non  Province 
animarum.'   Somn.  Virid.  i.  c.  154 — 5.   Gerson,  in  Schwab,  p.  88  ff. —  Spiritual 
For  the  rest,  even  Alvarius  Pelagius,  i.  a.  56,  confesses  that  the  Direction, 
temporal  power,  since  its  object  is  the  '  vita  virtuosa,'  has  to  work 

upon  the  'anima,'  and  to  that  extent  is  'spiritualis':  it  works, 
however,  only  '  secundum  naturam,'  while  the  spiritual  power  works 
*  secundum  gratiam  '  and  therefore  is  '  spiritualis  '  by  preeminence. 

313.  Mars.  Pat.  i.  c.  4 — 6  ascribes  to  the  State  a  solicitude  for  Spiritual 

the  '  bene  vivere '  both  on  earth  and  in  heaven,  and  therefore  a  ^"^l  °^ 

'  ^  the  State. 

widely  extended  care  for  morals  and  general  welfare.  Patric.  Sen. 
De  inst.  reip.  claims  for  the  government  the  whole  'vita  familiaris ' 
(allotment  of  land  and  settlement  of  families,  lib.  iv.),  the  'vita 
civilis '  of  every  citizen  (lib.  v.),  the  ordering  of  the  Estates  of  men 
(lib.  VI.),  nay,  even  the  duty  of  seeing  that  the  citizens  receive  none 
but  beautiful  (of  course  they  would  be  classical)  names  (lib.  vi.  7, 
pp.  298—304). 

314.  See  Thom.  Aquin.  De  reg.  princ.  i.  c.  i  ;  Engelb.  Volk. 
De  reg.  princ.  i.  c.  i — 4;  Dante,  i.  c.  5;  Alv.  Pelag.  i.  a.  62  b  ; 
Joh.  Paris,  c.  i. 


igo  Political  Theories  of  the  Middle  Age. 


the^Art^oT  ^^^^^  lessons  are  given  ex  officio  by  John  of  Salisbury, 

Govern-  Aquinas,  Vincent  of  Beauvais,  Engelbert  of  Volkersdorf,  Aegidius 
ment.        Romanus,  Patricius  of  Siena. 

The  316.    See  the  doctrine,  deriving  from  Aristotle,  of  the  Forms  of 

Govern^  Government  in  Aquin.  1.  c.  i.  c.  i — 3  ;  Aegid.  Rom.  iii.  2,  c.  2  ; 
ment.  Mars.  Patav.  i.  c.  8 — 9  (with  five  sub-forms  of  Monarchy) ;  Ockham, 
Dial.  III.  tr.  i,  1.  2,  c.  6 — 8  ;  Patric.  Sen.  De  inst.  reip.  i.  4;  Almain, 
Expos,  ad  q.  i,  c.  5  and  15.  See  also  Engelb.  Volk.  1.  c.  i.  c.  5 — 18 
who  supposes  four  fundamental  forms :  democratia^  aristocratta,  oli- 
cratia  (sic  !)  and  monarchia,  each  with  specific  principium  and  finis, 
and  four  degenerate  forms,  tyrannis,  olicratia  (degenerate  aristocratia), 
clerotis  and  barbaries.  See  also  above,  Notes  131,  135,  264 — 5, 
283—6. 

317.  See  above,  Notes  269  and  287. 

318.  See  above.  Notes  293 — 6. 

Possible  319.  See  above,  Notes  136,  161  and  165.  At  this  point  we 
of  Mori^°^  may  also  mention  the  theory  that  a  *  consilium  principis '  is  necessary 
archy.       and  that  the  law-courts  should  be  independent :  see  Eng.  Volk.  iii. 

c.  I — 45  ;  Aegid.  Rom.  iii.  c.  2,  c.  i  ff.  (the  princeps  to  maintain, 
the  consilium  to  contrive,  the  indices  to  apply,  the  populus  to  observe, 
the  laws). 

Mixed 

320.  See  above.  Note  165.    Engelbert  of  Volkersdorf  (i.  c.  7—8 
Constitu-   and  14 — 16)  is  the  most  independent  teacher  of  this  doctrine  ;  out  of 

his  four  fundamental  forms  he  constructs  six  that  are  doubly,  four 
that  are  triply,  and  one  that  is  simply  compounded,  and  then  of  his 
fifteen  forms  he  gives  highly  interesting  examples  from  the  political 
life  of  his  time. 

321.  See  above,  Note  268. 

322.  See  above,  pp.  65  ff. 

Growth  323.    A  characteristic  example  is  given  by  the  doctrine  of  the 

Modern  ^^^^  viewed  as  a  power  of  Expropriation 

State.  The  founded  on  and  limited  by  the  good  of  the  public.  [In  another  part 
Powef  work  (D.  G.  R.  11 1.  389)  our  author  has  spoken  of  the  view 

taken  by  the  legists :  taxation  is  a  form  of  expropriation,  and  there- 
fore there  should  be  a  iusta  causa  for  a  tax.]  Thom.  Aquin.  De  reg. 
lud.  q.  6 — 7  :  the  State  may  impose  taxes  for  the  '  communis  popuii 
utihtas';  but,  beyond  the  '  soliti  redditus'  (accustomed  revenues), 
only  '  collectae '  which  are  moderate  or  are  necessitated  by  such 
emergencies  as  hostile  attacks  should  be  levied :  if  these  bounds  are 
exceeded,  there  is  unrighteous  extortion.  Vincent.  Bellov.  x.  c.  66 — 69. 
Ptol.  Luc.  Ill,  c.  II  :  the  king,  because  of  his  duty  of  caring  for  the 
common  weal,  has  a  right  of  taxation,  which  however  is  limited  by 


Notes. 


191 


the  purpose  for  which  it  exists  :  always  therefore  '  de  iure  naturae ' 
he  may  demand  'omnia  necessaria  ad  conservationem  societatis 
humanae ' ;  but  never  any  more.  Joh.  Paris,  c.  7  deduces  the  right 
of  taxation  from  the  fact  that  private  property  needs  the  protection  of 
the  State  and  its  tribunals,  and  therefore  should  contribute ;  but  it 
may  be  taxed  only  '  in  casu  necessitatis '  and  proportionately. 
Similarly  Somn.  Virid.  i.  140 — i  :  taxes  which  exceed  traditional 
practice  can  only  be  imposed  in  those  cases  (they  are  specified)  in 
which  the  '  necessitas  reipublicae '  requires  them ;  they  must  be 
moderate  and  can  only  be  demanded  if  the  Ruler's  own  means  are 
insufficient ;  and  they  must  be  rightly  applied ;  all  other  taxation  is 
sin ;  the  Church  should  punish  it  '  in  foro  conscientiae '  and,  if 
possible,  secure  redress ;  and  it  gives  the  people  a  right  to  refuse 
payment  and  even  to  depose  the  ruler.  Gerson,  iv.  p.  199  and  616  : 
taxes  should  be  imposed  only  for  the  purposes  of  the  State  and 
should  be  equal  for  all.  See  Decius,  Cons.  649,  nr.  4 :  the  prohibi- 
tion of  the  imposition  of  new  taxes  does  not  extend  to  sovereign 
cities. 

324.  In  quite  modern  fashion  Patric.  Sen.  i.  6  proclaims  the  Equality 
equality  of  all  before  the  law  (aequalitas  iuris  inter  cives),  nay,  their  '^aw^^ 
equal  capacity  for  all  offices  and  their  equal  civic  duties. 

325.  See  the  statements  of  civic  duty,  to  sacrifice  life  and  goods  State  and 
for  the  '  salus  pubiica ' — statements  influenced  by  classical  antiquity 

— in  Aen.  Sylv.  c.  18,  and  Patric.  Sen.  v.  i — 10.  Also  Thom.  ofAn- 
Aquin.  Summa  Theol.  11.  i,  q.  90,  a.  2  :  '  unus  autem  homo  est  pars  ^^^"^^y- 
communitatis  perfectae,'  therefore  all  private  good  is  to  be  regulated 
only  '  secundum  ordinem  ad  bonum  commune,'  for  '  omnis  pars 
ordinatur  ad  totum  '  ;  ib.  a.  3,  so  in  relation  to  the  dofjius ;  ib.  n.  2, 
q.  58,  a.  5:  '  omnes  qui  sub  communitate  aliqua  continentur,  com- 
parantur  ad  communitatem  sicut  partes  ad  totum ;  pars  autem  id 
quod  est  totius  est ;  unde  et  quodlibet  bonum  partis  est  ordinabile  in 
bonum  totius.'  Joh.  Friburg.  11.  t.  5,  q.  204  :  duty  of  paying  taxes 
incumbent  on  every  one  as  *  pars  multitudinis '  and  therefore  '  pars 
totius.' 

326.  Marsilius  in  his  Defensor  Pacis  expressly  declares  that  the  The 

Church  is  a  State  Institution  and  that  the  sacerdotiuDi  is  *  pars  et  ^i^g^/p^" 

officium  civitatis'  (i.  c.  5 — 6).    Sovereign  in  things  ecclesiastical  is  tion  of 

the  '  universitas  fidelium,'  which,  however,  coincides  with  the  '  uni-  ^^urch  m 

State. 

versitas  civium'  and  in  this  respect,  as  in  all  other  matters,  is 
represented  by  the  prmdpa?is  whom  it  has  instituted,  so  that  the  line 
between  Spiritual  and  Temporal  is  always  a  line  between  two  classes 
of  affairs  and  never  a  line  between  two  classes  of  persons  (11.  c.  2,  7, 


192   Political  Theories  of  the  Middle  Age. 


Attitude 
of  the 
State 
towards 
the 

Church. 

Church 
Property 
and  Public 
Property. 


14,  17,  18,  21).  The  State  Power  imposes  conditions  for  admission 
to  the  sacerdotiiim,  regulates  the  functions  of  the  priesthood,  fixes  the 
number  of  churches  and  spiritual  offices  (11.  c.  8;  iii.  concl.  12  and 
21).  It  authorizes  ecclesiastical  foundations  and  corporations  (11. 
c.  17).  It  appoints  the  individual  clergyman,  pays  him,  obliges  him 
to  a  performance  of  duties,  removes  him,  nay,  its  consent  is  necessary 
to  every  ordination  (11.  c.  17,  24;  iii.  21,  40,  41).  It  watches  over 
the  exercise  of  every  spiritual  office,  to  see  that  it  is  strictly  confined 
to  purely  spiritual  affairs  (i.  19;  11.  i — 10).  All  iiirisdictio  and 
potestas  coactiva  are  exercised  immediately  and  exclusively  by  the 
wielder  of  temporal  power,  even  if  clerical  persons  are  concerned,  or 
matrimonial  causes,  dispensations,  legitimations  or  matters  of  heresy 
(11.  c.  8;  III.  c.  12  and  22).  Interdicts,  excommunications,  canoni- 
zations, appointments  of  fasts  and  feasts,  require,  at  the  very  least, 
authorization  by  the  State  (11.  c.  7,  21  ;  iii.  c.  16,  34,  35).  Only  on 
the  ground  of  express  commission  from  the  State  is  it  conceivable 
that  the  churches  should  have  any  worldly  powers  or  the  decretals 
any  worldly  force  (i.  c.  12;  11.  c.  28;  iii.  c.  7,  13).  Education  is 
exclusively  the  State's  affair  (i.  c.  21  ;  iii.  c.  25).  Appeals  and 
complaints  to  the  State  Power  are  always  permissible  (iii.  c.  37). 
All  Councils,  general  and  particular,  must  be  summoned  and  directed 
by  the  State  (11.  c.  8,  21  ;  iii.  c.  33).  Church  property  is  in  part  the 
State's  property,  and  in  part  it  is  res  nullius  (11.  c.  14).  In  any  case 
it  is  at  the  disposal  of  the  State,  which  thereout  should  provide  what 
is  necessary  for  the  support  of  the  clergy  and  for  the  maintenance  of 
worship,  and  should  collect  and  apply  the  residue  for  the  relief  of  the 
poor  and  other  public  purposes  (11.  c.  14;  iii.  c.  27,  38,  39).  The 
State  therefore  may  freely  tax  it,  may  divert  the  tithes  to  itself,  may 
give  and  take  benefices  at  pleasure,  and  for  good  cause  may  secularize 
and  sell  them,  'quoniam  sua  sunt  et  in  ipsius  semper  potestate  de 
iure'  (11.  c.  17,  21  ;  iii.  c.  27).  Only  what  has  come  from  private 
foundations  should,  under  State  control,  '  conservari,  custodiri  et 
distribui  secundum  donantis  vel  legantis  intentionem '  (11.  c.  14, 
17  ;  III.  c.  28). 

327.  Joh.  Paris,  c.  21,  pp.  203 — 5:  'est  enim  licitum  principi 
abusum  gladii  spiritualis  repellere  eo  modo  quo  potest,  etiam  per 
gladium  materialem  :•  praecipue  ubi  abusus  gladii  spiritualis  vergit  in 
malum  reipublicae,  cuius  cura  regi  incumbit.' 

328.  Thus  in  Disput.  inter  mil.  et  cler.  pp.  682 — 6  and  Somn. 
Virid.  c.  21 — 22,  where  the  confiscation  of  church  property  is  justified 
(with  a  strong  premonitory  suggestion  of  the  'propriete  de  la  nation'), 
since  the  weal  and  peace  of  Christian  folk  certainly  are  'pious  uses.' 


Notes. 


193 


Comp.  Joh.  Wiclif,  Trial  p.  407  ff.  art.  17,  and  Joh.  Hus,  Determinatio 
de  ablatione  temporalium  a  clericis,  in  Gold.  i.  pp.  232 — 42,  where  the 
right  to  secularize  church  property,  at  all  events  in  case  of  abuse,  is 
deduced  from  the  nature  of  government  and  the  subjection  of  the 
clergy.  Joh.  Paris,  c.  20,  p.  203 ;  Nic.  Cus.  iii.  c.  39  and  others 
argue  in  the  same  manner  for  the  State's  right  to  tax  ecclesiastical 
property.  So  too  Quaest.  in  utramque  part.  p.  106,  ad  17,  touching 
statutes  of  mortmain. 

329.  Comp.  Nic.  Cus.  iii.  c.  8 — 24,  33  and  40  :  the  temporal  The 
power  is  to  take  in  hand  ecclesiastical  affairs  and  to  demand  and  S^.^t^'^ 

^  Right  to 

control  their  reformation,  for  (11.  c.  40)  to  the  State  belongs  the  care  reform  the 
of  all  things  pertaining  '  ad  bonum  publicum, '  and  this  is  so  '  etiam  ^^"^'^h- 
in  ecclesiasticis  negotiis.'    Gregor.  Heimb.  in  Gold.  i.  pp.  559 — 60. 
Peter  Bertrand  ib.  11.  pp.  1261 — 83.    Patric.  Sen.  iii.  4.    As  to  the 
practical  treatment  of  the  Reform  of  the  Church  as  an  affair  of  the 
State,  see  Hiibler,  op.  cit.  pp.  281 — 8  and  318 — 22. 

330.  The  maxim  '  ius  publicum  est  in  sacris,  sacerdotibus  et  lus 
magistratibus '  was  applied  by  the  prevailing  doctrine  as  a  proof  of  part^onus 
the  state-like  nature  of  the  Church ;  see  Thorn.  Aquin.  Sum.  Theol.  Publicum. 
II.  I,  q.  95,  a.  4.    But  already  Ockham,  Octo  q.  iv.  c.  6,  says  that 

many  infer  from  this  text  that  the  Emperor  '  possit  ordinare  apostoli- 
cam  sedem  et  archiepiscopos  et  episcopos,'  and  also  that  no 
renunciation  of  such  a  'ius  publicum'  can  have  been  valid. 

331.  See  above,  Notes  62 — 64. 

332.  Thom.  Aquin.  De  reg.  princ.  i.  c.  i  in  fine,  Summa  Theol.  Definition 
11.  I,  q.  90,  a.  2 — 3  (civitas  est  communitas  perfecta),  Comm.  ad  ^^^^l^ 
Polit.  p.  366  fif. ;  Aegid.  Rom.  iii.  i,  c.  i  (principalissima  com- 
munitas), c.  4,  III.  2,  c.  32;  Joh.  Paris,  c.  i;  Eng.  Volk.  De  reg. 

princ.  II.  c.  2 — 3;  Mars.  Pat.  i.  c.  4  (perfecta  communitas  omnem 
habens  terminum  per  se  sufficientiae) ;  Ockham,  Dial.  iii.  tr.  i,  1.  2, 
c.  3—5- 

333.  Thus  Thom.  Aquin.  De  reg.  pr.  i.  c.  i  sees  civitas,  pro-  State, 
vincia,  regnum,  in  an  ascending  scale  of  self-sufficiency  (per  se  ^^p^g 
sufficiens  esse).    Ptol.  Luc.  iii.  c.  10 — 22  and  iv.  c.  i — 28  places  Civitas.' 
the  priest-kingly,  the  kingly  (including  the  imperial),  the  'political,' 

and  the  domestic  as  four  grades  of  Lordship,  and  in  so  doing  applies 
the  name  politia  to  the  civitates  which  have  been  expressly  defined 
(iv.  c.  i)  as  cities  that  in  some  points  are  subject  to  the  Emperor  or 
King ;  but  he  then  proceeds  to  use  civitas  now  in  this  and  now  in  a 
more  general  sense.  The  procedure  of  Aegidius  Romanus  is  clearer: 
for  him  the  civitas  is  the  '  principalissima  communitas'  only  'respectu 
domus  et  vici ' ;  the  *  communitas  regni '  is  yet  '  principalior,'  being 
M.  13 


194  Political  Theories  of  the  Middle  Age. 


The  Im- 
perium  as 
the  only 
true 
Civitas. 


Legal 
Defini- 
tions of 
Civitas. 


City  and 
Republic. 


related  to  civitas  as  civitas  to  vicus  and  doinus  (iii.  i,  c.  i);  also  he 
declares  it  highly  necessary  that,  to  secure  their  internal  and  external 
completion  (finis  et  complementum),  various  civitates  should  be 
united  in  the  body  of  one  regniwi  or  in  a  cotifoederatio  sub  tmo  rege 
(ill.  I,  c.  4 — 5  ;  compare  ii.  i,  c.  2  and  iii.  2,  c.  32).  Similarly 
Ockham,  Dial.  iii.  tr.  i,  1.  2,  c.  5:  the  'civitas'  is  ' principalissima 
omnium  communitatum,'  but  only  of  those  'simul  in  eodem  loco 
habitantes';  for  the  rest,  it  is  subordinated  to  some  diicatus  or  some 
regnum,  which  in  its  turn  may  be  subordinate.  In  the  passages  cited 
in  Note  64  Dante,  Engelbert  of  Volkersdorf,  Augustinus  Triumphus 
and  Antonius  Rosellus  presuppose  as  matter  of  course  that  the  civitas 
will  be  completed  by  some  regnum  and  this  by  the  imperiiim. 

334.  See  above,  Notes  199  ff.  Lupoid  of  Bebenburg  at  this 
point  adheres  closely  to  the  legists;  for  him  (c.  15)  kings  are 
'  magistratus  maiores '  who  differ  from  '  praesides  provinciae '  merely 
by  being  hereditary,  and  who  in  strictness  owe  their  places  to  an 
imperial  appointment  made  by  way  of  '  tacit  consent ' :  so  also  all 
lower  'magistratus'  and  the  governors  of  ' universitates,  castra, 
villae.' 

335.  See  the  definition  of  civitas  along  with  iirbs,  oppidum^  villa ^ 
castrum^  etc.  in  Joh.  And.  c.  17  in  Sexto  5,  11  and  c.  17  in  Sexto  i, 
6,  nr.  7  ;  Dom.  Gem.  c.  17  in  Sexto,  5,  11,  nr.  3 — 4;  Phil.  Franch. 
eod.  c.  nr.  4 — 5  \  Archid.  c.  56,  C.  12,  q.  2;  Barth.  Caep.  1.  2,  pr. 
Dig.  de  V.  S.  nr.  i — 28;  Vocab.  luris  v.  civitas;  Baldus,  1.  5,  Dig. 
I,  I ;  Barthol.  1.  i,  §  12,  Dig.  39,  i ;  Ludov.  Rom.  1.  i,  §  12,  Dig. 
39,  I,  nr.  12 — 17;  Jason,  1.  73,  §  i,  de  leg.  i.  nr.  i — 9;  Marcus,  Dec. 
I.  q.  365  and  366.  The  favourite  definitions  of  civitas  leave  quite 
open  the  question  whether  the  State  or  a  commune  is  intended : 
thus,  e.g.,  'civium  unitas '  or  '  hominum  multitudo  societatis  vinculo 
adunata  ad  simul  iure  vivendum '  or  '  humanae  multitudinis  coetus 
iuris  consensu  et  concordi  communione  sociatus,'  and  so  forth. 

336.  Baldus,  Const,  i.  Dig.  pr.  nr.  8  :  the  respublica  is  sometimes 
Rome,  sometimes  'totum  imperium,'  sometimes  'quaelibet  civitas'; 
Cons.  v.  c.  336 ;  Jason,  1.  71,  §  5,  Dig.  de  leg.  i.  nr.  29 ;  Barth.  Salic. 
1.  4,  Cod.  2,  54;  Decius,  Cons.  360,  403,  468,  564,  638;  Joh.  de 
Platea,  1.  un.  Cod.  11,  21,  nr.  5;  Bertach.  v.  respublica.  Men  help 
themselves  out  of  difficulties  by  the  confession  that  they  are  using 
words  '  improprie.'  [Dr  Gierke  refers  to  earlier  pages  in  his  book  in 
which  he  has  dealt  with  the  usage  of  the  glossators  (D.  G.  R.  iii.  201) 
and  later  legists  (ib.  358).  Of  the  glossators  he  says  that  they  en- 
deavour to  regard  the  Empire  as  the  only  true  respublica  and  to 
maintain  that  all  smaller  communities  stand  '  loco  privatorum ' ;  but, 
under  the  shelter  of  a  use  of  words  which  they  admit  to  be 


Notes. 


195 


'improper,'  they  practically  concede  political  rights  to  civic  com- 
munities.] 

337.  This  is  the  procedure  of  John  of  Paris,  c.  i,  and  other  The  State 
Frenchmen,  who  treat  '  the  Realm '  {regmim)  as  the  abstract  State  i^tsdHoose 
and  utterly  deny  the  imperium  mundi  (above.  Note  61).    So  also  from  the 
Mars.  Pat.  and  Patric.  Sen.  (i.  3  ff.)  without  further  definition.  Empire. 

338.  [At  this  point  Dr  Gierke  refers  to  earlier  parts  of  his  book  Communi- 
in  which  he  has  illustrated  the  slow  emergence  in  legal  theory  of  a  ^nd 
line  similar  to  that  which  moderns  draw  between  State  and  Com-  Communi- 
mune.    The  process  takes  the  form  of  a  division  of  corporations  into  ^ot 
two  classes  :  namely,  those  that  do  and  those  that  do  not  '  recognize  recognize 
a  superior.'    He  cites  (D.  G.  R.  iii.  p.  382)  the  following  passage  ^^-^"^^^ 
from  Bartolus,  1.  7,  Dig.  48,  i,  nr.  14:  cum  quaeUbet  civitas  Italiae 

hodie,  praecipue  in  Tuscia,  dominum  non  recognoscit,  in  seipsa 
habet  liberum  populum  et  habet  merum  imperium  in  seipsa  et 
tantam  potestatem  habet  in  populo  quantum  Imperator  in  universe. 
Then  the  'universitas  superiorem  non  recognoscens '  began  to  be 
regarded  as  being  de  facio,  if  not  de  hire,  the  respublica  and  the 
civitas  (or,  in  modern  terms,  the  State)  of  the  Roman  texts.  But  the 
process  was  gradual.  The  universitas  which  does  '  recognize  a 
superior'  will  have  iiirisdictio,  and  imperium  can  be  acquired  by 
privilege  or  prescription.  After  the  days  of  Bartolus,  says  our 
author,  we  are  often  given  to  understand  that  little  importance  is 
attached  to  the  old  dispute  as  to  whether  communities  can  acquire 
sovereignty  de  iure  as  well  as  de  facto.  He  cites  Panormitanus  (c.  7, 
X.  I,  2,  nr.  6)  for  the  admission  that  sovereign  kings  and  cities  have 
imperial  rights  in  their  territories.] 

339.  Paul.  Castr.  on  1.  i,     1—3,  Dig.  3,  4,  nr.  i,  1.  5,  Dig.  i,  i,  No  Com- 
lect.  2,  1.  86,  Dig.  29,  2,  nr.  3,  expressly  says  that,  according  to  above^The 
modern  law,  every  'populus  superiorem  non  recognoscens'  has  a  real  State  and 
and  true  respublica  of  its  own,  and  other  communes  have  '  largo  ^"une?^^" 
modo  rempublicam,'  while  other  collegia  are  only  'partes  reipublicae,'  below  The 
though  they  have  a  certain  likeness  {similitudo)  to  republics.  Simi- 

larly  Jason,  1.  19,  Cod.  i,  2,  nr.  15,  and  1.  i,  Dig.  2,  i,  nr.  18. 
Therefore  the  notion  of  a  fiscus  is  claimed  for  every  community 
which  does  not  recognize  a  Superior  and  denied  to  other  groups. 
Baldus,  1.  I,  Dig.  i,  8,  nr.  19,  1.  i.  Cod.  4,  39,  nr.  22  ;  Hippol.  Mars. 
1.  ult.  Cod.  3,  13,  nr.  189;  Lud.  Rom.  Cons,  in  ;  Bertach.  v.  fiscus 
dicitur  and  v.  civitas,  nr.  23,  46,  133,  135 — 7  ;  Marcus,  Dec.  i.  q.  234 
and  339. 

340.  As  to  the  lack  that  there  is  in  medieval  theory  of  any  Federal 
concept  of  a  Federal  State  {Bundesstaatsbegriff),  see  S.  Brie,  der 


196   Political  Theories  of  the  Middle  Age. 


Resistance 
to  the 
Central- 
izing Idea 
of  The 
State. 


Political 
Theory 
and  Feu- 
dalism. 


Bundesstaat,  i.  Leipz.  1874,  p.  12  ff.  If,  besides  alliances,  mention 
is  made  of  permanent  '  ligae  et  confoederationes  '  between  '  corpora ' 
and  * universitates '  (Bartol.  on  1.  4,  Dig.  47,  22,  nr.  6 — 11;  Baldus, 
s.  pac.  Const,  v.  ego,  nr.  i  ;  Angel.  Cons.  269,  nr.  i — 2)  these  are 
considered  to  have  no  political  quality  but  to  belong  to  the  domain 
of  Corporation  Law. 

341.  In  the  Church  the  writers  of  the  Conciliar  Party  resist  the 
centralizing  trend  which  is  to  be  seen  in  the  doctrine  of  the  Pope's 
Universal  Episcopate  (as  set  forth,  e.g.,  by  Augustinus  Triumphus, 

I.  q.  19,  Alvarius  Pelagius  and  Turrecremata,  De  pot.  pap.  c.  65), 
and  in  the  derivation  of  the  rights  of  all  other  Churches  from  the 
right  of  the  Roman  Church  (Dom.  Gem.  Cons.  14,  nr.  2 — 4  and  74, 
nr.  3—6),  and  in  the  assertion  of  the  Pope's  power  of  disposition 
over  the  rights  of  all  particular  Churches  (Decius,  Cons.  341,  nr.  8 — 9: 
papa  potest  dominium  et  ius  quaesitum  alicui  ecclesiae  etiam  sine 
causa  auferre),  and  so  forth.  See  Joh.  Paris,  c.  6 ;  Petr.  de  AlHac.  in 
Gers.  Op.  i.  pp.  666  ff.  and  692  and  De  eccl.  pot.  11.  c.  t  ;  Gerson, 

II.  p.  256,  for  the  defence  on  principle  of  the  rights  of  the  particular 
Churches;  and,  for  profounder  treatment,  see  Nic.  Cus.  11.  c.  13, 
22 — 28;  also  above,  Notes  89,  90.  In  the  State,  besides  Dante, 
Cusanus  and  Ant.  Rosellus  (above,  Notes  62 — 64),  who  hold  fast  the 
medieval  thought  of  a  Community  comprising  All  Mankind,  even 
Marsilius,  11.  c.  24,  upholds  both  in  State  and  Church  the  principle 
of  mediate  organic  articulation  (above,  Note  89).  According  to 
Ockham,  Dial.  iii.  tr.  2,  1.  i.  c.  30,  even  'ipsa  tota  communitas 
Romanorum '  ought  not  to  invade  the  '  iura  partialia  Romanorum 
personarum  vel  congregationum  seu  collegiorum  aut  communitatum 
particularium.'  Comp.  ib.  i,  2,  c.  28:  '  quaelibet  privata  persona 
et  quodlibet  particulare  collegium  est  pars  totius  communitatis, 
et  ideo  bonum  cuiuslibet  privatae  personae  et  cuiusHbet  par- 
ticularis  coUegii  est  bonum  totius  communitatis.'  See  also  Paris 
de  Puteo,  Tr.  de  Synd.  p.  40,  nr.  20  :  Princeps  sine  causa  non 
tollit  universitati  publicum  vel  commune  sicut  nec  rem  privati :  it 
would  be  raphia.  Also  we  often  hear,  as  part  of  Aristotle's  teaching, 
that  the  suppression  of  '  sodalitates  et  congregationes '  is  a  mark  of 
Tyranny,  whereas  the  'verus  rex'  would  have  his  subjects  *con- 
foederatos  et  coniunctos':  Aegid.  Rom.  iii.  2,  c.  10;  Thom.  Aquin. 
De  reg.  princ.  i.  c.  3 ;  Somn.  Virid.  c.  134;  Gerson,  iv.  p.  600. 

342.  Of  the  writers  of  this  group  Ptolemy  of  Lucca  is  the  only 
one  who  comes  to  close  quarters  with  Feudalism :  he  develops  the 
thought  that  while  salaried  offices  are  best  adapted  to  a  Republic,  in- 
feudated  offices  suit  a  Monarchy:  11.  c.  10;  and  compare  iii.  c.  21 — 22. 


.J 


Notes. 


197 


343.  Towards  this  result  both  the  doctrine  of  the  Prince's  All  other 

'  plenitude  of  power '  and  the  doctrine  of  Popular  Sovereignty  were  fgi-TveV  by 
tending.    Aeneas  Sylvius,  c.  14 — 23,  gives  to  it  its  sharpest  form  for  Delega- 
the  Kaiser's  benefit.    He  goes  so  far  as  to  declare  that  an  appeal  ggygi-Jj^ 
from  Emperor  to  Emperor  and  Princes  is  impossible,  and  the  Power, 
attempt  is  laesa  maiestas ;  for  the  '  imperator  cum  principibus '  can 
do  no  more  than  the  *  imperator  solus ' : — '  amat  enim  unitatem 
suprema  potestas.' 

344.  See  the  notion  of  office  entertained  by  the  Emperor  Early 
Frederick  II.  as  formulated  in  Petr.  de  Vin.  iii.  68  :  For  the  fulfil-  J^^^"^'^^" 
ment  of  our  divine  mission  we  must  appoint  officers,  'quia  non 
possumus  per  universas  mundi  partes  personaliter  interesse,  licet 
simus  potentialiter  ubique  nos '  \  the  officers  are  rightly  '  ad  actum 
deducere...quod  in  potentia  gerimus  per  eos  velut  ministros.'  See 

also  ib.  V.  c.  i  ff.,  100 — 2,  vi.  c.  19,  21 — 23.  As  to  the  transformation 
by  the  Hohenstaufen  of  the  infeudated  offices  in  Italy  see  Ficker, 
Forschungen,  11.  pp.  277,  472  ff,  477  ff.  See  also  the  notion  of 
officium  in  Thom.  Aquin.  De  reg.  princ.  i.  c.  15  ;  Mars.  Pat.  i.  c.  5, 
7,  15  (the  institution  of  offices  and  the  definition  of  spheres  of  official 
competence  are  matters  for  the  legislature ;  the  appointment,  cor- 
rection, payment  of  officers  are  matters  for  the  executive  power). 
Patric.  Sen.  iii.  i — 12. 

345.  Thus,  e.g.,  Petr.  de  Andlo,  i.  c.  12,  relying  on  the  maxim  All  Power 
'  contra  absolutam  potestatem  principis  non  potest  praescribi,'  ex-  fi-o°m^and 
pressly  says  that  the  Emperor  can  withdraw  all  public  powers  from  is  revo- 
any  commune  or  corporation,  no  matter  the  longest  usage.    He  the  state, 
recommends  that  this  be  done  in  the  case  of  jurisdictional  rights, 

more  especially  in  matters  of  life  and  limb,  vested  in  '  plures  com- 
munitates,  imo  castella  et  exiguae  villae  terrarum,  ubi  per  simplicis- 
simos  rusticos  ius  reddi  consuevit.' — Compare  also  the  rejection  of 
'autonomy'  in  Aegid.  Rom.  iii.  2,  c.  27,  and  indirectly  in  Thom. 
Aquin.  Summa  Theol.  11.  i,  q.  90,  a.  3  ;  also  the  power  that  Marsilius 
accords  to  the  State  over  ecclesiastical  collegia  (11.  c.  21  and  iii.  c.  29) 
and  foundations  (11.  c.  17,  21,  and  iii.  c.  28).  And  see  above, 
Note  324. 


CAMBRIDGE  :  PRINTED  BY  J.  &  C.  F.  CLAY,  AT  THE  UNIVERSITY  PRESS 


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